A Practical Guide to Discovery & Depositions in Rhode Island [1 ed.] 2010925474, 1575896044

Table of contents :
Preliminary Pages
FOREWORD
ACKNOWLEDGMENTS
ABOUT THE EDITORS
ABOUT THE ETHICS COMMENTATOR
ABOUT THE AUTHORS
TABLE OF CONTENTS
TABLE OF EXHIBITS
Chapter 1
An Introduction to Rhode Island Discovery Practice
§ 1.1 RULES OF CIVIL PROCEDURE
§ 1.2 NECESSITY FOR DISCOVERY
§ 1.3 PURPOSE OF DISCOVERY
§ 1.4 SCOPE AND LIMITS OF DISCOVERY
§ 1.5 THE METHODS OF DISCOVERY
§ 1.6 NECESSITY FOR PROFESSIONALISM AND CIVILITY
§ 1.7 RHODE ISLAND’S MOTION PRACTICE
§ 1.8 CONCLUSION
Chapter 2
Analyzing Discovery and Investigation Issues
§ 2.1 INTRODUCTION
§ 2.2 INVESTIGATION OF THE CLAIM
§ 2.2.1 Individual Client
(a) Relevant Facts and Witnesses
(b) Relevant Documents
§ 2.2.2 Corporate Client
§ 2.2.3 Budgetary Constraints
(a) Affidavits
(b) Expert Witnesses
(c) Depositions
§ 2.2.4 Legal Fees
§ 2.2.5 Statutes to Consider When Investigating a Claim and Considering Legal Options
(a) Statute of Limitations
(b) Notice Statutes
(c) Acceleration Statutes
§ 2.2.6 Standards for Professional Conduct Within the Rhode Island Judicial System
(a) Lawyers’ Obligations to Clients
(b) Lawyers’ Obligations to Opposing Parties and Their Counsel
§ 2.3 RHODE ISLAND SUPERIOR COURT RULES OF CIVIL PROCEDURE
§ 2.3.1 Rule 26—General Provisions Governing Discovery; Duty of Disclosure
§ 2.3.2 Rule 27—Depositions Before Action or Pending Appeal
§ 2.3.3 Rule 28—Persons Before Whom Depositions May Be Taken
(a) Within Rhode Island
(b) Outside Rhode Island
§ 2.3.4 Rule 29—Stipulations Regarding the Taking of Depositions
§ 2.3.5 Rule 30—Depositions Upon Oral Examination
§ 2.3.6 Rule 31—Depositions Upon Written Questions
§ 2.3.7 Rule 32—Use of Depositions in Court Proceedings
§ 2.3.8 Rule 33—Interrogatories to Parties
§ 2.3.9 Rule 34—Production of Documents and Things and Entry Upon Land for Inspection for Other Purposes
§ 2.3.10 Rule 35—Physical and Mental Examination of Persons
§ 2.3.11 Rule 36—Requests for Admission
§ 2.3.12 Rule 37—Failure to Make or Cooperate in Discovery: Sanctions
§ 2.3.13 Rule 45—Subpoena
Chapter 3
Creating a Discovery Plan
§ 3.1 INTRODUCTION
§ 3.2 ANALYZING THE DISCOVERY NEEDS OF A CASE
§ 3.2.1 Research, Understand, and Know the Law and the Subject Matter
§ 3.2.2 Examination of the Available Facts and Documents
(a) The Client
(b) Assess and Consider Whether Public Sources of Factual Information Are Available
§ 3.2.3 Identify Additional Sources of Discoverable Information
§ 3.2.4 What is the Best Way to Obtain the Information You Seek
§ 3.2.5 Is Expert Testimony Likely?
§ 3.2.6 Periodic Review of Discovery Needs
§ 3.3 EVALUATING THE COST OF AND BUDGETING DISCOVERY
§ 3.3.1 Overview: Why Budget?
§ 3.3.2 What to Consider in Projecting Discovery Costs
§ 3.3.3 Special/Substantial Cost Issues to Consider
(a) Expert Fees
(b) Audiovisual Depositions of Evidence/Computer Technology
(c) Litigation Support Services
§ 3.4 SCHEDULING DISCOVERY EVENTS
§ 3.4.1 Develop a Logical Progression of Discovery
(a) Prefiling Discovery
(b) Postfiling
§ 3.4.2 Complying with Court Rulesand Case-Specific Orders
§ 3.4.3 Scheduling Depositions and Inspections
§ 3.4.4 Dealing with Requests for Extension of Time
§ 3.4.5 Moving to Amend Scheduling Order Deadlines
§ 3.4.6 Supplementation of Discovery Responses
§ 3.5 CONCLUSION
EXHIBIT 3A—Sample Rule 30(b)(6) Deposition Notice
EXHIBIT 3B—Sample Miscellaneous Petition to Produce Records
EXHIBIT 3C—Sample Miscellaneous Petition to Perpetuate Testimony
EXHIBIT 3D—Motion to Modify Scheduling Order
Chapter 4
Selected Case Investigation Techniques
§ 4.1 INTRODUCTION
§ 4.2 CONDUCTING CLIENT INTERVIEWS
§ 4.2.1 Steps to Take in Effective Client Interviews
(a) Learn to Listen
(b) Encourage Your Client to Tell the Story
(c) Follow a Chronological Sequence
(d) Use Common Sense and Ask Pointed Questions
(e) Find Out Who the Other Players Are
(f) Find Out What Documents or Electronic Records Exist
(g) Identify Legal Issues
(h) Recognize the Client’s Need to Vent
(i) Size Up the Client as a Possible Witness
(j) Size Up the Client as a Decision Maker
(k) Assess External Factors
(l) Have a Postinterview Game Plan
§ 4.2.2 Special Issues in Initial Client Contacts
(a) Representation of Multiple Clients
(b) Privilege Issues Relating to Corporate Clients
§ 4.3 OBTAINING WITNESS STATEMENTS
§ 4.3.1 Identifying Potential Witnesses
§ 4.3.2 Interview Preparation
§ 4.3.3 Interview Process
§ 4.3.4 Use of Witness Statements
§ 4.3.5 Ex Parte Contact with Employees of a Corporate Opponent
§ 4.4 USING INVESTIGATORS AND OTHER RESOURCES
§ 4.4.1 Internet Resources
§ 4.4.2 Private Investigators
(a) Services Provided
Location of Witnesses
Tracking Down Reluctant Witnesses
Witness Interviews
Asset Investigation
(b) Choosing an Investigator
(c) Work Product Issues
§ 4.5 BEYOND ZEALOUS ADVOCACY: AN ATTORNEY’S RESPONSIBILITY
EXHIBIT 4A—Checklist for Client Interviews
Chapter 5
Conducting Internal Investigations
§ 5.1 INTRODUCTION
§ 5.2 INTERNAL INVESTIGATIONS AND CRIMINAL PROSECUTION
§ 5.2.1 Corporate Versus Individual Criminal Liability
§ 5.2.2 Prosecutorial Discretion
§ 5.2.3 Public Company Accounting Reform and Investor Protection Act of 2002
§ 5.3 DOES YOUR CLIENT NEED AN INTERNAL INVESTIGATION?
§ 5.3.1 Elements of Internal Investigation
§ 5.3.2 Reasons for Investigation
§ 5.3.3 Factors Militating Against Investigation
(a) Cost
(b) Drain on Corporate Resources
(c) Risk of Disclosure
§ 5.4 STAGES OF A TYPICAL INTERNAL INVESTIGATION
§ 5.4.1 Things to Do Before Starting the Investigation
(a) Initial Steps
(b) Role of In-House Counsel
(c) Knowing Exactly Who the “Client” Is
(d) Making Sure Management Is Fully Behind the Effort
(e) Protecting Available Privileges
(f) Setting Clear Goals and Objectives
(g) Assembling Your Team
(h) Organizational Chart and Chronology
§ 5.4.2 Privilege Issues
(a) General Principles
(b) Attorney-Client Privilege
(c) Work Product Protection
(d) Upjohn Co. v. United States
(e) “Self-Critical Analysis” Privilege
(f) Waiver
§ 5.4.3 Developing the Facts: Documents Before Interviews
(a) Create an Overview of the Available Materials
(b) Appoint a Document Czar
(c) Organize the Materials You Collect
(d) Using the Documents as a Foundation for Your Investigation
(e) Issues Concerning Destruction of Documents
§ 5.4.4 Conducting Employee Interviews
(a) Have a Plan
(b) Consider Who Will Do the Interviewing and Who Will Attend
(c) Make an Outline
(d) Consider Where the Interview Will Occur
(e) Steps at the Start of the Interview
Defining the Attorney-Client Relationship
Purpose of the Interview
Separate Counsel Considerations
(f) The Interview Itself
(g) Preserving Your Impressions of the Interview
§ 5.4.5 Reporting Your Findings
§ 5.5 WHAT TO DO AFTER THE INVESTIGATION
EXHIBIT 5A—Selected Bibliography
Chapter 6
Obtaining Information from Rhode Island State and Local Government Sources
§ 6.1 RHODE ISLAND’S ACCESS TO PUBLIC RECORDS ACT
§ 6.1.1 Statement of Purpose
§ 6.1.2 General Description
§ 6.1.3 When Does the Access to Public Records Act Apply?
(a) Definition of “Public Body”—Statutory Definition
(b) “Public Body”—Holdings and Decisions
(c) “Public Record”—Definition
(d) Exemptions
The Twenty-Five Exceptions
Nonexempt Records
Settlement of Legal Claims
§ 6.2 PROCEDURES FOR ACCESS TO PUBLIC RECORDS
§ 6.2.1 Access to Documents
§ 6.2.2 Cost of Copying and Inspecting Public Records
§ 6.3 REMEDIES AVAILABLE
§ 6.4 COMMERCIAL USE OF PUBLIC RECORDS
§ 6.5 CONTINUING ACCESS
EXHIBIT 6A—Sample Request Letter
EXHIBIT 6B—Sample Denial Letter
EXHIBIT 6C—State Agencies Contact Information
EXHIBIT 6D—State Government Contact Information
Chapter 7
Using the Internet in Discovery and Investigation
§ 7.1 INTRODUCTION
§ 7.2 COMPUTERS AND COMPUTER NETWORKS
§ 7.2.1 Early History
§ 7.2.2 The Internet Today
§ 7.2.3 Use by Lawyers
§ 7.3 SEARCH ENGINES
§ 7.3.1 Overview
§ 7.4 SPECIALIZED WEB SITES
§ 7.4.1 Medical Information Web Sites
(a) National Center for Biotechnology Information (NCBI)
(b) MD Consult
(c) National Guideline Clearinghouse
(d) IDEX
(e) SEAK
(f) Wikipedia
(g) Google (“The Catch All”)
(h) Using Medical Information on the Internet During Discovery
§ 7.4.2 Web Sites with Personal Information
§ 7.4.3 Corporate/Business Information on the Internet
(a) SEC Web Site—“EDGAR”
(b) Business Web Sites
(c) News Web Sites
§ 7.4.4 Government Web Sites
(a) Rhode Island Secretary of State Web Site
(b) Rhode Island Judiciary
(c) Land Records
(d) Rhode Island General Assembly
(e) Internal Revenue Service
(f) Weather Information
(g) Product Safety and Consumer Information
§ 7.4.5 Legal and Legal Education Web Sites
(a) PACER
(b) Cornell University’s Legal Information Institute
(c) Law.com
§ 7.4.6 Finding Extinct Web Sites
§ 7.4.7 Miscellaneous Web Sites and Information
(a) Refdesk.com
§ 7.5 BLOGS, BULLETIN BOARDS, NEWSGROUPS, ETC.
§ 7.6 ADMISSIBILITY OF WEB PAGES, WEB POSTINGS, AND OTHER INTERNET EVIDENCE
EXHIBIT 7A—List of Search Engines
Chapter 8
Spoliation and Preservation of Evidence
§ 8.1 INTRODUCTION-RATIONALE AND PURPOSE
§ 8.2 SPOLIATION AND DISCOVERY
§ 8.3 REMEDIES FOR SPOLIATION
§ 8.3.1 Factors Considered in Determining the Remedy
§ 8.3.2 Admissibility Not Required
§ 8.3.3 Exclusion of Evidence as a Remedy
§ 8.3.4 Dismissal with Prejudice, Default, or Entry of Judgment as Remedies
§ 8.3.5 Jury Instruction and Adverse Inference
§ 8.3.6 Reference in Closing and Fair Game
§ 8.3.7 Criminal Cases
§ 8.3.8 Spoliation as an Independent Tort
§ 8.4 PRESERVATION OF EVIDENCE IN DISCOVERY
§ 8.4.1 Ethics Considerations
§ 8.4.2 Duty Commences Before Litigation
§ 8.4.3 Preservation Letters
(a) Advise Client to Preserve
(b) Notice to Other Parties
§ 8.4.4 Court-Ordered Duty
§ 8.4.5 Opportunity to Inspect
§ 8.4.6 Electronically Stored Information
EXHIBIT 8A—Sample Jury Instruction on Spoliation
Chapter 9
Protecting Confidential and Privileged Information Before and During Discovery
§ 9.1 INTRODUCTION
§ 9.2 DISCOVERY FRAMEWORK
§ 9.2.1 Scope and Purpose of Discovery
§ 9.2.2 Super. R. Civ. P. 26(b)(1)
§ 9.2.3 Judicial Discretion in Discovery
§ 9.2.4 Limits on Discovery of Relevant and Nonprivileged Information
§ 9.3 CONFIDENTIAL AND PRIVILEGED INFORMATION
§ 9.3.1 Trade Secrets
§ 9.3.2 Medical Records
§ 9.3.3 Privileged Information
§ 9.3.4 Trial Preparation Materials
§ 9.3.5 Rhode Island Law of Privileges
§ 9.4 PROTECTING CONFIDENTIAL AND PRIVILEGED INFORMATION BEFORE DISCOVERY
§ 9.5 PROTECTING CONFIDENTIAL AND PRIVILEGED INFORMATION DURING DISCOVERY
§ 9.5.1 Responding and Objecting to Discovery Requests
§ 9.5.2 Asserting Privileges
§ 9.5.3 Privilege Logs
§ 9.5.4 Protective Orders
§ 9.5.5 Judicial Relief from Protective Orders
§ 9.5.6 Responding to Subpoenas
§ 9.5.7 Protecting Confidential and Privileged Information in Pretrial Submissions
§ 9.6 STIPULATED OR CONSENT PROTECTIVE ORDERS
§ 9.6.1 General Considerations
§ 9.6.2 Types of Stipulated Protective Orders
§ 9.6.3 Stipulating to Permissible Use of Confidential Information
§ 9.6.4 “Counsel Only” Protection of Confidential Information
§ 9.7 INADVERTENT DISCLOSURE
§ 9.7.1 Preventing Inadvertent Disclosure
§ 9.7.2 Effect and Remedies for Inadvertent Disclosure
§ 9.8 CONCLUSION
EXHIBIT 9A—Sample E-Mail
EXHIBIT 9B—Sample Fax Cover Sheet
EXHIBIT 9C—Sample Privilege Log
EXHIBIT 9D—Sample Motion for Protective Order
EXHIBIT 9E—Sample Protective Order
EXHIBIT 9F—Stipulated Confidentiality Order
EXHIBIT 9G—Sample Stipulated “Counsel Only” Protective Order
Chapter 10
Interrogatories
§ 10.1 INTRODUCTION
§ 10.2 INTERROGATORY PROCEDURE
§ 10.2.1 Who May Be Interrogated?
§ 10.2.2 Timing of Interrogatories
§ 10.2.3 Service of Interrogatories
§ 10.2.4 Form of Interrogatories
§ 10.2.5 Number of Interrogatories
§ 10.2.6 Form of Answers to Interrogatories
§ 10.2.7 Deadlines for Answering
§ 10.2.8 Remedies for Failure to Properly Answer Interrogatories
§ 10.2.9 Super. R. Civ. P. 37 Motion to Compel and Motion for Sanctions
§ 10.2.10 Motions to Compel More Responsive Answers to Interrogatories
§ 10.3 INTERROGATORY STRATEGY
§ 10.3.1 Timing
§ 10.3.2 Content
(a) Identify the Party
(b) Identify All Potential Fact Witnesses
(c) Identify the Location of All Relevant Documents
(d) Identify the Factual Bases of the Opposing Party’s Claims and Defenses
(e) Identify the Expert Witnesses a Party Intends to Call at Trial
(f) Quantify a Plaintiff’s Claims for Damages
(g) Identify the Existence of an Insurance Agreement
§ 10.4 ANSWERS TO INTERROGATORIES
§ 10.4.1 Duty to Investigate
(a) Individual Parties
(b) Agents or Officers for a Corporation
§ 10.4.2 Objections
(a) Objections Based on Super. R. Civ. P. 26
(b) Privileged Information
§ 10.4.3 Answers to Expert Interrogatories
§ 10.4.4 Option to Produce Business Records
§ 10.4.5 Duty to Supplement Answers to Interrogatories
§ 10.5 USE OF ANSWERS AT TRIAL
EXHIBIT 10A—Plaintiffs’ Motion to Compel Defendant’s Answers to Interrogatories and Request for Production
EXHIBIT 10B—Conditional Order
EXHIBIT 10C—Plaintiff’s Interrogatories Propounded to Defendant
EXHIBIT 10D—Defendant’s Interrogatories Propounded to Plaintiff
Chapter 11
Requests for Documents and Things and for Entry Upon Land
§ 11.1 INTRODUCTION
§ 11.2 DRAFTING AND SERVING DOCUMENT PRODUCTION REQUESTS
§ 11.2.1 Targets for Document Requests
(a) Parties
(b) Private Nonparties
(c) Public Nonparties
§ 11.2.2 When to Serve Requests
§ 11.2.3 Extensions and Discovery Deadlines
§ 11.2.4 Number of Requests Allowed
§ 11.2.5 What Documents and Things You Can Request
§ 11.2.6 How to Draft Your Requests
(a) General Principles
(b) Drafting the Introduction
Instructions
Definitions
(c) Drafting Specific Requests
Correspondence/Communications
Notes and Records of Conversations
Financial Information
Investigations and Reports
Photographs, Videos, and Other Recordings
Physical Evidence
§ 11.3 RESPONDING TO REQUESTS FOR PRODUCTION
§ 11.3.1 When to Respond
§ 11.3.2 Time, Place, and Manner of Production
§ 11.3.3 Objections to Requests
(a) Overall Approach
(b) General Objections
(c) Specific Objections
Relevance
Privilege and Trial Preparation Materials
Protective Order Grounds
Confidential Commercial, Proprietary, or Trade Secret Information
§ 11.3.4 Duty to Supplement Requests
EXHIBIT 11A—Sample Request for Production of Documents
EXHIBIT 11B—Sample Response to Request for Production of Documents
Chapter 12
Organizing Documents Identified During Discovery; Document Management by Going Paperless*
§ 12.1 ORGANIZING DOCUMENTS IDENTIFIED DURING DISCOVERY
§ 12.1.1 Introduction
§ 12.1.2 The Pretrial Conference
§ 12.1.3 Organizing Responses to Interrogatories and Requests for Production
§ 12.1.4 Paginating Documents Produced and Received
§ 12.1.5 Medical Records
§ 12.1.6 Chronology
§ 12.1.7 Deposition
§ 12.1.8 Organizing for Experts
§ 12.1.9 Organizing for Trial
§ 12.1.10 Conclusion
§ 12.2 GOING PAPERLESS
§ 12.2.1 Pick a Date
§ 12.2.2 Get a Scanner
§ 12.2.3 Get Hard Disk Space
§ 12.2.4 Automatically Back Up Hard Drive
§ 12.2.5 Set Up A–Z Folders on Server
§ 12.2.6 Migrate Existing Folders and Documents
§ 12.2.7 Create Naming Structure for New Files
§ 12.2.8 Get “Banker’s” Boxes and Tabs
§ 12.2.9 Review New Procedures with Staff
§ 12.2.10 Check Your Files
§ 12.2.11 Establish End-of-Day Routine
§ 12.2.12 Start a New Box
Chapter 13
Depositions
§ 13.1 INTRODUCTION
§ 13.2 PERMISSIBLE SCOPE OF DEPOSITION TESTIMONY
§ 13.2.1 Scope and Limits of Deposition Discovery
§ 13.2.2 Depositions of Experts
§ 13.2.3 Protective Orders
§ 13.3 DEPOSITIONS TO PERPETUATE TESTIMONY
§ 13.4 OUT-OF-STATE DEPOSITIONS
§ 13.5 PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
§ 13.6 DEPOSITION STIPULATIONS
§ 13.7 DEPOSITION PROCEDURE
§ 13.7.1 When Depositions May Be Taken
§ 13.7.2 Notice of Examination
§ 13.7.3 Attendance of the Witness and Others at Depositions
§ 13.7.4 Methods of Recording Depositions
§ 13.7.5 Production of Documents and Things at Depositions
§ 13.7.6 Depositions of Organizations
§ 13.7.7 Telephonic or Remote Video Depositions
§ 13.7.8 Conduct of the Deposition: Examination and Cross-Examination
(a) Preliminary Statement
(b) Examination and Cross-Examination
(c) Diagrammatic Testimony
(d) Who May Attend Depositions
(e) Objections
(f) Protective Orders
§ 13.7.9 Reviewing, Changing, and Signing the Deposition
§ 13.8 DEPOSITIONS UPON WRITTEN QUESTIONS
§ 13.9 USE OF DEPOSITIONS IN COURT PROCEEDINGS
§ 13.9.1 Use of Depositions of Parties
§ 13.9.2 Use of Depositions in Lieu of Live Testimony
§ 13.9.3 Rule of Completeness
§ 13.9.4 Methods of Presenting Deposition Testimony
§ 13.9.5 Use of Depositions to Impeach with Prior Inconsistent Statements
§ 13.9.6 Effect of Errors or Irregularities in Depositions
(a) Waiver of Errors, Irregularities, or Objections
(b) Objections That Are Preserved
§ 13.10 TACTICS AND TECHNIQUES
§ 13.10.1 Establish Clear Goals for Every Deposition
§ 13.10.2 Give the Witness Appropriate Directions at the Start of the Deposition
§ 13.10.3 Exhaust the Witness’s Recollection on Each Important Point
§ 13.10.4 Ask Good Questions
§ 13.10.5 Use of Leading Questions
§ 13.10.6 Listen to the Witness’s Answers
§ 13.10.7 Repeat the Question Until the Witness Answers It
§ 13.10.8 Do Not Argue with the Opposing Lawyer
§ 13.10.9 Understand the Procedure for Marking Documents as Deposition Exhibits
§ 13.10.10 Have Realistic Goals When Deposing Experts
Chapter 14
Deposing Medical and Technical Experts
§ 14.1 CURRENT RHODE ISLAND LAW AND PRACTICE
§ 14.1.1 Expert Depositions Allowed as of Right Pursuant to Super. R. Civ. P. 26(b)(4)
§ 14.1.2 Procedure and Practice
§ 14.1.3 Compensation Related to Depositions
§ 14.1.4 Experts Not Expected to Testify at Trial
§ 14.2 PREPARATION AND RESEARCH
§ 14.2.1 Preliminary Considerations
§ 14.2.2 Assessing the Completeness of the Disclosure
§ 14.2.3 Researching the Expert and the Science
§ 14.2.4 What Do You Want to Accomplish?
§ 14.3 USE OF DOCUMENTS AT DEPOSITION
§ 14.3.1 The Expert’s File
§ 14.3.2 Communications with Attorneys
§ 14.3.3 Expert Reports
§ 14.4 AREAS OF EXAMINATION
§ 14.4.1 Qualifications
§ 14.4.2 Methodology
§ 14.4.3 Opinions Held and Scope of Consultation
§ 14.4.4 Areas of Dispute and Agreement
§ 14.4.5 Credibility and Bias
§ 14.4.6 Grounds for Excluding or Admitting Trial Testimony
§ 14.5 DEFENDING THE EXPERT DEPOSITION
§ 14.5.1 Review All Documents in the Expert’s File
§ 14.5.2 Prepare the Expert
(a) Form and Certainty of Opinions
(b) Support for Opinions
(c) Demeanor
§ 14.5.3 Consultation and/or Questioning During the Deposition
EXHIBIT 14A—Excerpts from Rule 26 of the Rhode Island Superior Court Rules of Civil Procedure
EXHIBIT 14B—Sample Language Requesting That Deponent Bring Documents to Deposition
Chapter 15
Audiovisual Depositions
§ 15.1 INTRODUCTION
§ 15.2 RULES OF PROCEDURE
§ 15.2.1 Audiovisual Depositions Under Rhode Island Rule 30(b)
(a) Standard Audiovisual Depositions
Notice Under Rule 30(b)
Procedure Under Rule 30(b)
Stipulations Under Rule 29
Use Under Rule 32
Using Videotaped Testimony During Closing Arguments
(b) Audiovisual Expert Witness Depositions for Trial
§ 15.2.2 Audiovisual Depositions Under Federal Rule 30(b)
§ 15.3 WHEN TO CONSIDER VIDEORECORDING A DEPOSITION
§ 15.3.1 Unavailability of the Witness
§ 15.3.2 Special Demonstrations
§ 15.3.3 Expert Witnesses
§ 15.3.4 Deterrence Against Subsequently Changed Testimony
§ 15.3.5 Settlement
§ 15.4 TIPS FOR A SUCCESSFUL DEPOSITION
§ 15.4.1 Preparing the Witness
§ 15.4.2 Selecting the Room
§ 15.4.3 Setting Up the Shot
§ 15.4.4 Points to Keep in Mind During the Deposition
§ 15.4.5 Mechanics of Playing Videotaped Testimony
§ 15.5 PROBLEMS WITH VIDEORECORDING DEPOSITIONS
§ 15.6 DIGITAL TECHNOLOGIES
§ 15.7 ADDITIONAL RESOURCES
Chapter 16
The Recordkeeper Deposition
§ 16.1 INTRODUCTION
§ 16.2 STATUTES AND RULES RELATING TO KOR DEPOSITIONS
§ 16.2.1 Authority to Issue a Subpoena
§ 16.2.2 Subpoena for Production of Documentary Evidence
§ 16.2.3 Obtaining Medical Records
(a) Confidentiality of Healthcare Communications and Information Act
(b) Use of Photostatic Copies
(c) Evidence of Charges for Medical and Hospital Services and for Prescription and Orthopedic Appliances—Evidence Required from Hospital Medical Records
§ 16.3 THE KOR DEPOSITION PROCEDURE
§ 16.3.1 Drafting and Serving the Subpoena Duces Tecum
§ 16.3.2 Conducting the KOR Deposition
EXHIBIT 16A—Sample Cover Letter to Enclose with Subpoena Duces Tecum
EXHIBIT 16B—Sample KOR Deposition Questions (Records Only)
EXHIBIT 16C—Sample KOR Deposition (Live Testimony)
Chapter 17
Rule 30(b)(6)
§ 17.1 INTRODUCTION
§ 17.2 THE MECHANICS OF THE RULE
§ 17.2.1 Text of Rule 30(b)(6)
§ 17.2.2 Interpretation of the Rule in Rhode Island
§ 17.2.3 Differences Between the Federal and State Rules
§ 17.3 THE RULE 30(b)(6) NOTICE AND SUBPOENA
§ 17.3.1 The Deposition Notice
§ 17.3.2 The Deposition Subpoena
§ 17.3.3 Duty to Prepare Witness Properly
(a) What Does the Duty Require?
(b) Identification and Production of Documents Used to Prepare a Rule 30(b)(6) Witness
§ 17.3.4 Designating the Organizational Representative
§ 17.3.5 Matters on Which Examination Is Requested
(a) Reasonable Particularity
(b) What to Do if the Topics Designated Fail to Provide Reasonable Particularity
§ 17.4 THE DEPOSITION
§ 17.4.1 Preliminary Matters
§ 17.4.2 Examination Beyond the Scope of the Notice
(a) Matters Listed in Notice Limit Scope of Examination: Paparelli v. Prudential Insurance Co. of America
Deposing Party May Not Inquire as to Matters Outside Scope of Notice
Proper Way to Prevent Such Inquiry Is to Object and Pursuant to Rule 30(d) Suspend Deposition and Seek Protective Order; Instructions Not to Answer Are Inappropriate
(b) Scope of Rule 30(b)(6) Deposition Is Not Limited to Noticed Matters: King v. Pratt & Whitney
§ 17.4.3 Joint Individual and Rule 30(b)(6) Depositions
§ 17.4.4 Questions About Legal Positions or Contentions and the Facts Supporting Them
§ 17.5 THE BINDING EFFECT OF RULE 30(b)(6) DEPOSITIONS
EXHIBIT 17A—Sample Notice of Rule 30(b)(6) Deposition
EXHIBIT 17B—30(b)(6) Preliminary Matters Checklist
Chapter 18
Deposing Accountants and Economists
§ 18.1 DEPOSING ACCOUNTANTS
§ 18.1.1 Introduction
§ 18.1.2 Witness, Defendant, or Expert?
§ 18.1.3 Preliminary Matters
(a) Which Accountants to Depose
(b) Time Period of Inquiry
(c) Which Engagement
§ 18.1.4 Documents
(a) Recordkeeper Versus Rule 30(b)(6) Deposition
(b) Content and Organization
(c) Original Versus Copies
(d) Scope of Questioning
Rule 30(b)(6) Deposition
Keeper and Rule 30(b)(6) Deposition
§ 18.1.5 Substantive Deposition of the Accountants
(a) Preparation with Your Own Expert
(b) Deciding Whom to Depose
(c) Scope of Deposition
Facts Essential to Case
Standards Followed
Review of Management Letter and Other Work Papers
Accountants’ Knowledge of Client and Industry
Relevant Privileges
§ 18.1.6 Conclusion
§ 18.2 DEPOSING ECONOMISTS
§ 18.2.1 Introduction
§ 18.2.2 Preparing for the Deposition
(a) The Information
(b) The Expert
(c) The Economist’s Expert Opinion
§ 18.2.3 Deposition Strategy
§ 18.2.4 Conclusion
EXHIBIT 18A—Checklist of Information Needed for Economic Appraisal
Chapter 19
Physical and Mental Examinations
§ 19.1 INTRODUCTION
§ 19.2 REQUIREMENTS FOR OBTAINING AN ORDER
§ 19.2.1 Medical Condition “In Controversy”
§ 19.2.2 “Garden Variety” Conditions
§ 19.2.3 Specific and/or Severe Conditions
§ 19.2.4 Turner v. Imperial Stores—The Modern Test
§ 19.2.5 Good Cause
§ 19.2.6 Additional Requirements of Rule 35
§ 19.2.7 Place, Time, and Costs
§ 19.2.8 Type and Extent of Examination
(a) General Considerations
(b) Drugs and Anesthetics
(c) X-rays
(d) Blood and Other Chemical Analyses
(e) Vocational Experts
§ 19.2.9 Person Conducting the Examination
§ 19.2.10 Persons Present at Examination
§ 19.2.11 Examiner’s Report
§ 19.3 RECOURSE
Chapter 20
Requests for Admissions
§ 20.1 INTRODUCTION
§ 20.2 DRAFTING REQUESTS
§ 20.2.1 Mechanics
§ 20.2.2 Scope
§ 20.2.3 Style
§ 20.2.4 Strategies for Using Requests Effectively
§ 20.3 RESPONDING TO REQUESTS
§ 20.3.1 Responding to Requests in a Timely Manner
§ 20.3.2 Responding to Requests for Admission in a Proper Manner
(a) Overview
(b) Admitting the Truth of a Matter
(c) Denying the Truth of a Matter
(d) Explaining Why You Cannot Truthfully Admit or Deny a Matter
Defining “Reasonable” and “Readily Obtainable”
Contours of Your Client’s Duty to Make a “Reasonable Inquiry”
(e) Duty of Good Faith
(f) Objecting to Requests
Proper Objections
Improper Objections
(g) Supplementation
(h) Moving for a Protective Order
§ 20.4 MOVING TO DETERMINE THE SUFFICIENCY OF RESPONSES
§ 20.4.1 Moving to Determine the Sufficiency of Answers
§ 20.4.2 Moving to Determine the Sufficiency of Objections
§ 20.4.3 Default Admissions
§ 20.5 MOVING TO WITHDRAW OR AMEND ADMISSIONS
§ 20.5.1 Overview
§ 20.5.2 Grounds for Withdrawal of Amendment
(a) Grounds for Withdrawal
(b) Heightened Standard for Admissions Included in Pretrial Order
(c) Standard of Review
§ 20.6 USING ADMISSIONS TO WIN YOUR CASE
§ 20.6.1 Using Admissions to Obtain Summary Judgment
§ 20.6.2 Using Admissions at Trial
§ 20.6.3 Using Default Admissions
§ 20.6.4 Using Admissions in Other Proceedings
§ 20.6.5 Prohibition on Introduction of Denials into Evidence
§ 20.7 SANCTIONS FOR FAILURE TO ADMIT
§ 20.8 CONCLUSION
Chapter 21
Obtaining Medical Records
§ 21.1 HIPAA
§ 21.2 RHODE ISLAND CONFIDENTIALITY OF HEALTH CARE COMMUNICATIONS AND INFORMATION ACT
§ 21.3 OBTAINING YOUR CLIENT’S MEDICAL RECORDS
§ 21.3.1 Consent Forms
§ 21.3.2 The Cost of Obtaining Your Client’s Medical Records
§ 21.4 OPPOSING COUNSEL WANTS ALL OF YOUR CLIENT’S MEDICAL RECORDS REGARDLESS OF SCOPE OR TIME PERIODS
§ 21.5 SUBPOENAING MEDICAL RECORDS
§ 21.6 MOTIONS TO QUASH
§ 21.7 CONCLUSION
EXHIBIT 21A—R.I. Gen. Laws § 5-37.3-4
EXHIBIT 21B—Sample Authorization for Use of Protected Health-Care Information
Chapter 22
Attorney-Client Communications Privilege and the Work-Product Doctrine
§ 22.1 INTRODUCTION
§ 22.2 SCOPE OF ATTORNEY-CLIENT COMMUNICATIONS PRIVILEGE
§ 22.2.1 Elements of Privilege
§ 22.2.2 Burden of Proof
§ 22.2.3 Corporate or Organizational Client
§ 22.2.4 Nature of Communications
§ 22.2.5 Government Entities
§ 22.3 THIRD PARTIES AND THE ATTORNEY-CLIENT PRIVILEGE
§ 22.4 BREACH OF THE PRIVILEGE
§ 22.5 WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE
§ 22.5.1 Express Waiver
§ 22.5.2 Implied or At Issue Waiver
§ 22.5.3 Inadvertent Disclosure
§ 22.6 EFFECT OF ASSERTING ATTORNEY-CLIENT PRIVILEGE
§ 22.7 THE JOINT DEFENSE PRIVILEGE
§ 22.8 THE WORK-PRODUCT DOCTRINE
§ 22.9 INTERPLAY BETWEEN ATTORNEY-CLIENT COMMUNICATIONS PRIVILEGE AND THE WORK-PRODUCT DOCTRINE
§ 22.10 PRACTICAL CONSIDERATIONS
§ 22.10.1 When to Assert the Attorney-Client and Work-Product Privileges
§ 22.10.2 What to Do When an Adverse Party Claims Attorney-Client Privilege or Work-Product Protection
Chapter 23
Discovery from Out-of-State and Foreign Nonparty Witnesses
§ 23.1 INTRODUCTION
§ 23.2 OBTAINING NONPARTY DISCOVERY IN OTHER STATES WITHIN THE UNITED STATES
§ 23.2.1 Options Available Under the Statutes and Rule 28(b)
§ 23.2.2 Obtaining a Commission
§ 23.3 OBTAINING DISCOVERY FROM NONPARTY WITNESSES LOCATED IN FOREIGN COUNTRIES
§ 23.3.1 Obtaining Discovery in Countries Pursuant to the Hague Evidence Convention
(a) Voluntary Discovery Through Notices or Commissions
Deposition Before Consular Officer
Commission
(b) Involuntary Discovery Through Letters of Request
Preparation of Materials
Transmission of the Request
§ 23.3.2 Obtaining Discovery in Countries Not Signatories to the Hague Evidence Convention
§ 23.4 OBTAINING DISCOVERY IN RHODE ISLAND FOR USE IN AN OUT-OF-STATE CASE
EXHIBIT 23A—Motion for Issuance of Commissions
EXHIBIT 23B—Order for Commission to Take Deposition and Issue Out-of-State Subpoena
EXHIBIT 23C—Proposed Order Pursuant to New Jersey Court Rule 4:11-4
EXHIBIT 23D—Subpoena for Issuance to New Jersey Witness
EXHIBIT 23E—Deposition Notice
EXHIBIT 23F—Application for Issuance of Request for the Examination of Witness Pursuant to the Hague Convention for the Taking of Evidence Abroad
EXHIBIT 23G—Request for International Judicial Assistance Pursuant to the Hague Convention
EXHIBIT 23H—Sample Cover Letter
EXHIBIT 23I—Originating Motion and Associated Papers for Filing with Australian Court
EXHIBIT 23J—Miscellaneous Petition for Issuance of Subpoena(s) to Compel Deposition and/or Inspection of Documents for Use in an Out-of-State Action
EXHIBIT 23K—Motion for Order to Issue Subpoena for Use in Foreign Litigation
EXHIBIT 23L—Proposed Order Issuing Subpoena in Rhode Island for Use in Foreign Litigation
EXHIBIT 23M—Bibliography
Chapter 24
Discovery Motions and Appeals
§ 24.1 INTRODUCTION
§ 24.2 SCOPE OF DISCOVERY
§ 24.3 GROUNDS AND MOTIONS TO LIMIT DISCOVERY
§ 24.3.1 Limitations Within Rule 26(b)
§ 24.3.2 Motions for Protective Order
(a) Rule 26(c) Motions
(b) Rule 30(d) Motions
§ 24.3.3 Raising Discovery Objections
(a) Presenting and Preserving Discovery Objections
(b) Rule 33 Objections to Interrogatories
(c) Rule 34 Objections to Requests for Production
§ 24.4 MOTIONS TO COMPEL DISCOVERY
§ 24.4.1 Motions to Compel Answers to Interrogatories, Production of Documents, Answers at Depositions—Rule 37(a)(2)
§ 24.4.2 Motions Resulting from Failure to Comply with Orders Compelling Discovery
(a) Contempt Motions—Rule 37(b)(1)
(b) “Other Consequences”—Rule 37(b)(2)
Rule 37(b)(2)(A)—Taking Facts as Established
Rule 37(b)(2)(B)—Prohibition on Supporting or Opposing Claims and Defenses or Introducing Matters in Evidence
Rule 37(b)(2)(D)—Contempt
Default and Dismissal—Rule 37(b)(2)(C)
A Curious Hybrid—Rule 37(d)
§ 24.4.3 Motions Relating to Requests for Admissions—Rules 36(a) and 37(c)
§ 24.4.4 Requests for Attorney Fees and Costs
§ 24.5 MISCELLANEOUS DISCOVERY MOTIONS
§ 24.5.1 Depositions to Perpetuate Testimony
§ 24.5.2 Out-of-State Depositions
§ 24.5.3 Depositions Which Require Leave of Court
§ 24.5.4 Depositions Upon Written Questions
§ 24.5.5 Use of Depositions in Court
§ 24.5.6 Interrogatories
§ 24.5.7 Requests for Production
§ 24.5.8 Physical and Mental Examinations of Persons
§ 24.5.9 Requests for Admissions
§ 24.6 APPELLATE REVIEW OF DISCOVERY ORDERS
§ 24.6.1 Direct Appeal or Certiorari
§ 24.6.2 Standard of Review—Or, What Is an “Abuse of Discretion”?
§ 24.7 DRAFTING CONSIDERATIONS
§ 24.7.1 Motions to Compel
(a) Motions to Compel Answers to Interrogatories and Production of Documents
(b) Motions to Compel More Responsive Answers to Interrogatories
(c) Motions to Compel Answers at Depositions
§ 24.7.2 Motions for Sanctions
§ 24.7.3 Motions for Protective Orders
EXHIBIT 24A—Motion to Shorten Time to Serve Answers to Interrogatories
EXHIBIT 24B—Motion to Compel Answer to Deposition Question
EXHIBIT 24C—Motion to Compel Answers to Interrogatories
EXHIBIT 24D—Motion to Compel Attendance at Deposition
EXHIBIT 24E—Motion to Compel More Responsive Answers to Interrogatories
EXHIBIT 24F—Motion to Compel Production of Documents
EXHIBIT 24G—Motion to Default
EXHIBIT 24H—Motion to Dismiss
EXHIBIT 24I—Motion to Determine Sufficiency of Responses to Request for Admissions
EXHIBIT 24J—Motion for Entry of Final Judgment of Dismissal
EXHIBIT 24K—Motion to Take Deposition Less than Thirty Days After Service of Complaint
EXHIBIT 24L—Motion to File Request for Production with Response Date of ________
EXHIBIT 24M—Motion to Propound More than Thirty Interrogatories
EXHIBIT 24N—Motion for Protective Order
EXHIBIT 24O—Motion to Take Deposition by Telephone
Chapter 25
Electronic Discovery
§ 25.1 INTRODUCTION
§ 25.1.1 The World of Electronic Information and Discovery
§ 25.1.2 Federal and Rhode Island Superior Court Discovery Rules Briefly Compared
§ 25.1.3 E-Discovery Bibliography
§ 25.2 ELECTRONIC DOCUMENT STORAGE AND MANAGEMENT PRACTICES
§ 25.3 PRESERVING AND PRODUCING ELECTRONIC DATA
§ 25.3.1 Preservation
(a) Obligation to Preserve
(b) Scope of Preservation Obligation
Who Is Responsible for Preserving Documents?
What Must Be Retained?
For What Time Period Must Documents Be Retained?
What Must a Party Do to Ensure that Relevant Documents Are Retained?
What Must Counsel Do to Ensure that Relevant Documents Are Retained?
What Are a Party’s Continuing Duties Once a Litigation Hold Is Put in Place?
(c) Production
§ 25.3.2 Sanctions for Breach of the Duty to Preserve or Produce
§ 25.4 COLLECTING ELECTRONIC INFORMATION FROM ADVERSARIES AND THIRD PARTIES
§ 25.4.1 Putting Your Adversary on Notice
§ 25.4.2 Obtaining Order to Preserve Evidence
§ 25.4.3 Using Formal Discovery Devices
(a) Interrogatories
(b) Document Requests
EXHIBIT 25A—E-Discovery Bibliography
EXHIBIT 25B—Excerpt from the Sedona Guidelines
EXHIBIT 25C—Sample Electronic Discovery Outline for Preparing or Deposing a Business Witness
EXHIBIT 25D—Sample Questionnaire for Interviewing Client Technology Personnel
EXHIBIT 25E—Sample Notices (Formal and Basic)
EXHIBIT 25F—Sample Preservation Letter
EXHIBIT 25G—Model Order Regarding Preservation
Chapter 26
Discovery Relating to Experts
§ 26.1 OVERVIEW
§ 26.2 GOVERNING RULES
§ 26.3 RETAINING AND WORKING WITH EXPERT WITNESSES
§ 26.4 STATUS OF DAUBERT IN RHODE ISLAND STATE PRACTICE
§ 26.5 PROPOUNDING AND RESPONDING TO EXPERT INTERROGATORIES
§ 26.6 TO DEPOSE OR NOT TO DEPOSE
§ 26.7 PREPARING FOR EXPERT DEPOSITIONS
§ 26.8 CONDUCTING THE EXPERT DEPOSITION
§ 26.9 DEFENDING THE EXPERT DEPOSITION
§ 26.10 PROPER—AND IMPROPER—DEPOSITION BEHAVIOR
§ 26.11 USE OF EXPERT DEPOSITIONS IN MOTIONS OR AT TRIAL
§ 26.12 TAKING YOUR EXPERT’S VIDEO DEPOSITION FOR USE AT TRIAL
§ 26.13 SPECIAL CONSIDERATIONS REGARDING FACT WITNESSES WHO MAY ALSO TESTIFY AS EXPERTS
§ 26.14 DISCOVERY CONCERNING NONTESTIFYING EXPERTS
§ 26.15 COMPARISON WITH FEDERAL PRACTICE
EXHIBIT 26A—Sample Expert Interrogatory
EXHIBIT 26B—Sample Scheduling Order
Chapter 27
Differences Between Federal and State Discovery Practice
§ 27.1 INTRODUCTION
§ 27.2 RULE 26
§ 27.2.1 Required Disclosure
§ 27.2.2 Insurance
§ 27.2.3 Experts
§ 27.2.4 E-Discovery
§ 27.2.5 Supplementing Responses
§ 27.2.6 Discovery Conference; Discovery Plan
§ 27.3 RULE 30
§ 27.3.1 Timing
§ 27.3.2 Limit on the Total Number of Depositions
§ 27.3.3 Notice
§ 27.3.4 Method of Recording Testimony
§ 27.3.5 Duration of the Deposition
§ 27.4 RULE 31
§ 27.5 RULE 32
§ 27.6 RULE 33
§ 27.6.1 Service and Timing of Interrogatories
§ 27.6.2 Responses
§ 27.6.3 Motions to Compel
§ 27.6.4 Option to Produce Business Records
§ 27.7 RULE 34
§ 27.8 RULE 35
§ 27.9 RULE 36
§ 27.10 RULE 37
Chapter 28
Discovery Before the RICHR
§ 28.1 INTRODUCTION
§ 28.2 INVESTIGATORY PHASE
§ 28.3 ADJUDICATORY PHASE
§ 28.4 REQUEST FOR ADMISSIONS
§ 28.5 REQUESTS FOR PRODUCTION OF DOCUMENTS
§ 28.5.1 Housing
§ 28.5.2 Employment
§ 28.6 INTERROGATORIES
§ 28.6.1 Housing
§ 28.6.2 Employment
§ 28.7 DEPOSITIONS
§ 28.8 CLOSE OF DISCOVERY
§ 28.9 ETHICAL CONSIDERATIONS
Chapter 29
Discovery in Alternative Forums—Administrative Agencies
§ 29.1 INTRODUCTION
§ 29.2 THE ADMINISTRATIVE PROCEDURES ACT
§ 29.3 PREPARING A DISCOVERY PLAN FOR USE IN AGENCY CONTESTED CASES
§ 29.3.1 Ascertain the Specific Discovery Rules Applicable to the Cognizant Agency, Board, or Body
§ 29.3.2 Special Discovery Targets and Tools in Agency Proceedings: The “Agency File” and Use of the Access to Public Records Act
§ 29.3.3 Special Discovery Requests Peculiar to Administrative Agency Proceedings
§ 29.3.4 The Discovery Plan Must Fit the Available Prehearing Time Table
§ 29.3.5 The Use of Subpoenas When Formal Discovery Mechanisms Are Unavailable
§ 29.4 ADMINISTRATIVE DISCOVERY CASE LAW
Chapter 30
Rhode Island Superior Court’s Business Calendar
§ 30.1 OVERVIEW
§ 30.2 THE HISTORY OF THE BUSINESS CALENDAR
§ 30.3 ONLY SPECIFIC TYPES OF CASES MAY BE ASSIGNED TO THE BUSINESS CALENDAR
§ 30.4 ASSIGNING A CASE TO THE BUSINESS CALENDAR
§ 30.5 THE BUSINESS CALENDAR OVERSEES RECEIVERSHIPS IN PROVIDENCE COUNTY
§ 30.5.1 The Initiation of a Receivership
§ 30.5.2 The Guidelines for the Receiver’s Actions Are Established by the Superior Court
§ 30.6 DISCOVERY ON THE BUSINESS CALENDAR
§ 30.7 SEEKING INJUNCTIVE RELIEF ON THE BUSINESS CALENDAR
§ 30.7.1 What Is an Injunction?
§ 30.7.2 Where to Obtain an Injunction
§ 30.7.3 Standards for Preliminary Injunctive Relief
§ 30.7.4 Evidentiary Issues When Seeking an Injunction
§ 30.8 CONCLUSION
Chapter 31
Discovery for Court-Annexed Arbitrations and Mediations
§ 31.1 THE COURT-ANNEXED ARBITRATION PROCESS IN RHODE ISLAND
§ 31.1.1 In All Personal Injury Cases Valued at Less Than $100,000, Court-Annexed Arbitration Is Mandatory
§ 31.1.2 R.I. Gen. Laws § 27-10.3-1 Authorizes Presuit Arbitration of Motor Vehicle Claims Valued at Less Than $25,000 Under Same General Rules as Court-Annexed Arbitration Process
§ 31.2 MEDIATION
§ 31.3 DISCOVERY IN ARBITRATION AND MEDIATION MATTERS
Chapter 32
Discovery in Medical Negligence Cases
§ 32.1 INTRODUCTION
§ 32.2 VARIOUS METHODS OF DISCOVERY IN MEDICAL NEGLIGENCE
§ 32.2.1 Interrogatories in Medical Malpractice Matters
(a) Expert Disclosure
§ 32.2.2 Requests for Production of Documents
§ 32.2.3 Depositions
(a) Compelling Testimony from Expert Fact Witnesses
(b) Payment of Expert Fees
(c) Materials Subject to Discovery at Expert Deposition
§ 32.3 SUBPOENAS
§ 32.3.1 In-State Witness Subpoenas
§ 32.3.2 In-State Records Subpoena
§ 32.3.3 Out-of-State Subpoenas
§ 32.4 NONDISPOSITIVE MOTIONS AND SANCTIONS
§ 32.4.1 Scheduling Orders/Scheduling Conferences
§ 32.4.2 Learned Treatises
EXHIBIT 32A—Sample Interrogatories in a Medical Malpractice Case, Issued by Defendant
EXHIBIT 32B—Sample Document Request
Chapter 33
Discovery in Mass Tort Litigation/Consolidated Cases
§ 33.1 INTRODUCTION
§ 33.2 DEFINITION OF “MASS TORT”
§ 33.3 APPOINTMENT AND ROLES OF COUNSEL
§ 33.4 PRO HAC VICE PROCEDURE
§ 33.5 DOCUMENT PRESERVATION
§ 33.6 TIMING OF DISCOVERY
§ 33.7 PROTECTIVE ORDERS, PRIVILEGE CLAIMS, AND CONFIDENTIALITY
§ 33.8 DISCOVERY PLAN
§ 33.9 INTERROGATORIES AND DOCUMENT REQUESTS
§ 33.10 EX PARTE CONTACTS WITH HEALTH CARE PROFESSIONALS
§ 33.11 COORDINATION WITH RELATED LITIGATION
EXHIBIT 33A—Sample Protective and Confidentiality Order
EXHIBIT 33B—Sample Order for Master Discovery Sets
EXHIBIT 33C—Ex Parte Communication with Treating Physicians
Table of Cases
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
Y
Z
Table of Statutes Rules and References
FEDERAL
RHODE ISLAND
OTHER STATES
INTERNATIONAL CONVENTIONS
ADDITIONAL REFERENCES AND RESOURCES
Index
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
X

Citation preview

A Practical Guide to Discovery and Depositions in Rhode Island Hon. Patricia A. Hurst, Mark B. Morse, et al.

MCL E

NEW ENGLAND

Keep raising the bar.®

A Practical Guide to Discovery & Depositions in Rhode Island 1ST EDITION 2010

EDITORS Hon. Patricia A. Hurst Mark B. Morse ETHICS COMMENTATOR Barbara L. Margolis AUTHORS Patrick C. Barry Armando E. Batastini Gil A. Bianchi, Jr. Michael R. Bottaro Jeffrey S. Brenner Sean K. Brousseau Jack A. Cacchiotti, Jr. John L. Calcagni III Joshua E. Carlin Peter J. Cerilli Peter J. Comerford Timothy J. Conlon Maurice J. Cusick Sonja L. Deyoe Leah J. Donaldson Michael Field

John S. Foley Kelly M. Fracassa Mark W. Freel Francis A. Gaschen Mark H. Grimm Laura C. Harrington Hon. Patricia A. Hurst Paul M. Kessimian Charles S. Kirwan Howard B. Klein Donna M. Lamontagne Brooks R. Magratten Howard A. Merten Jeffrey M. Padwa Jessica L. Papazian-Ross Rebecca Tedford Partington Stanley F. Pupecki Michael Patrick Quinn, Jr. Raymond M. Ripple Jeffrey C. Schreck B. Mitchell Simpson III Manuel R. Smith Randall L. Souza Howard E. Walker William M. White

2100313B01—1st Edition 2010

© 2010 by Massachusetts Continuing Legal Education, Inc. All rights reserved. Published 2010. Permission is hereby granted for the copying of pages or portions of pages within this book by or under the direction of attorneys for use in the practice of law. No other use is permitted without prior written consent of Massachusetts Continuing Legal Education, Inc. Printed in the United States of America This publication should be cited: A Practical Guide to Discovery & Depositions in Rhode Island (MCLE, Inc. 2010) Library of Congress Card Number: 2010925474 ISBN: 1-57589-604-4 Massachusetts Continuing Legal Education, Inc.’s programs and publications are offered as an aid to maintaining professional competence with the understanding that neither the publisher nor the authors are rendering legal, tax, accounting, or other professional advice. The statements contained in MCLE’s products do not reflect a position of MCLE or its trustees, officers, or sponsors. IRS CIRCULAR 230 NOTICE: Any U.S. tax advice found to be included in this publication is not intended or written to be used, and cannot be used, for the purpose of avoiding U.S. tax penalties or for promoting, marketing, or recommending to another party any tax-related matter addressed herein. Due to the rapidly changing nature of the law, the information in MCLE products may become outdated. Therefore, attorneys using MCLE products should also research original and current sources of authority. Nonattorneys using MCLE products and having legal questions are encouraged to seek the legal advice of a qualified Massachusetts attorney. Massachusetts Continuing Legal Education, Inc. Ten Winter Place, Boston, MA 02108-4751 800-966-6253 | Fax 617-482-9498 | www.mcle.org

FOREWORD I am proud to have been given the opportunity to participate in this worthwhile project, published by MCLE | New England. MCLE | New England’s practice series will be instrumental for use by the Rhode Island practitioner. A Practical Guide to Discovery and Depositions in Rhode Island is intended to be the foremost guide for those who practice in the area of civil litigation. It is our hope that these volumes will encourage our colleagues to disclose in a timely fashion what is necessary to disclose, while at the same time guarding information that is privileged or otherwise nondiscoverable. We hope, through this publication, to capture the spirit and intent of the discovery rules, and to eliminate needless motion practice on matters that should be resolved without the intervention of the court. Finally, we see this publication as a means to provide instruction to our colleagues, and to provide the bar with the benefit of the authors’ accumulated experience and wisdom. In Rhode Island, we recognize MCLE as the gold standard in Massachusetts, and, with that in mind, each of the authors chosen to write for A Practical Guide to Discovery and Depositions in Rhode Island was selected with care. We sought to include only the highest caliber of practitioners, those who practice with the level of excellence that such an important topic demands. I was asked to include a mix of lawyers, representative of the plaintiffs’ and the defense bar. I was asked to include lawyers from the larger firms as well as those from smaller and medium size firms. Above all, I was asked to consider inviting those who demonstrate good writing skills and familiarity with the practice rather than the theory of the law, who are conscientious of deadlines, and who would be comfortable writing on their assigned topics. My first task was to assist in the choice of a judicial editor. The judicial editor needed to be someone who could critically analyze the subject, and someone to shape the content of the book, in order that the chapters would provide guidance to the bar about what is expected in the discovery process. I believe that no one could better have met these goals than the Honorable Justice Patricia A. Hurst. Her vast knowledge of the nuances of discovery practices and civil procedure helped to shape this publication to meet our objectives. Justice Hurst enthusiastically undertook this project, working tirelessly to help develop all that could be gained from each chapter. Likewise, Barbara Margolis, Assistant Disciplinary Counsel, took on the challenge of providing ethical commentary, ensuring that each recommended practice remained within the bounds of good ethical practice. Attorney Margolis’ contribution to these chapters is invaluable, and her contributions greatly appreciated. iii

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

I have been honored to work with the MCLE staff, particularly with Maryanne G. Jensen, who coordinated the revisions and editing process, kept everyone on task, and supported all our suggestions. It has especially been an honor and privilege to work with Justice Hurst, Barbara Margolis, and with each of the authors. I expect that A Practical Guide to Discovery and Depositions in Rhode Island will be the crucial guide for those practicing in the civil bar; I hope that we have made the practice of law a bit more illuminating in the area of pretrial discovery and depositions. Mark B. Morse September 2010

A Word from Justice Patricia A. Hurst, Editor The chapters contained in this guide were authored by attorneys who concentrate in various areas of the law and who are possessed of different levels of experience. Each of the authors brings their own perspective to this work, the result of which is a remarkable and balanced collection of views and approaches to discovery issues. Because Rhode Island’s civil discovery rules are interrelated and form a cohesive body, there necessarily is overlap among some of the chapters but, thanks to the diversity among the authors and their viewpoints, each chapter possesses unique value. When writing their chapters, every author remained open to the editors’ recommendations and research suggestions, and to judicial commentary, the latter of which has been incorporated into this volume in the form of substantive edits and additional practice notes and text. This guide represents a genuinely collaborative effort between the bench and members of the bar. The authors and editors also were fortunate to have State of Rhode Island Supreme Court Deputy Disciplinary Counsel Barbara Margolis join forces in the project with her contributions to the ethics commentary and to have Roger Williams University Law School Professor B. Mitchell Simpson III’s collaboration in the introductory chapter. I am honored that MCLE | New England allowed me the opportunity to participate as an editor in this most rewarding undertaking. Working with each of the authors and coeditor Attorney Mark B. Morse truly was a gratifying and enlightening experience. All of us look forward to the day when this guide will be relied upon as authoritative by both the bench and the bar. Hon. Patricia A. Hurst September 2010 iv

ACKNOWLEDGMENTS MCLE | New England® (MCLE | NE) publications are designed to assist practitioners in acquiring the professionalism and practical skills that would help them better to represent, advocate for, and counsel clients in state jurisdictions throughout New England. We are pleased to present A Practical Guide to Discovery and Depositions in Rhode Island as a key title in the growing MCLE | NE practice library. First and foremost among those deserving recognition and thanks for their editorial leadership on this publication are the book’s volunteer coeditors, the Honorable Patricia A. Hurst, a senior trial justice of the Rhode Island Superior Court, and Attorney Mark B. Morse, Esq., of the Law Office of Mark B. Morse, Providence. Justice Hurst and Mr. Morse are commended for their dedication to this publication, having given generously of their time and expertise to develop the detailed table of contents, identify a roster of over forty Rhode Island practitioners as chapter authors, and work closely with the authors to develop the chapter content. They have worked tirelessly to ensure that the thirty-three chapters that comprise this manual are timely, authoritative, and exhibit the best practices of the Rhode Island bar. Justice Hurst’s and Mr. Morse’s leadership on this publication has made a significant contribution to the literature on trial practice in Rhode Island, and MCLE | New England is grateful for their efforts. Kind thanks are extended also to Attorney Barbara L. Margolis, deputy disciplinary counsel of the Rhode Island Supreme Court, for the insightful ethics commentaries that she has contributed to this book. Attorney Margolis’s willingness to enrich the content with a perspective driven by the Rules of Professional Conduct has made this book all the more practical and valuable. This book would not exist but for the many Rhode Island authors, noted litigators, and trial counsel who have shared their litigation and courtroom wisdom for this project. It has been MCLE’s honor to collaborate with each of them. This work was inspired in part by MCLE’s publication, Massachusetts Discovery Practice, edited by John A. Houlihan, Esq. (©2002, 2005, 2009 MCLE, Inc.), which served as an example for the development of the Rhode Island publication. We gratefully acknowledge Mr. Houlihan’s work and the contributions of the publication’s authors.

v

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

It is MCLE’s hope that the MCLE | New England imprint will provide practical and authoritative publications for lawyers in the New England states, and that A Practical Guide to Discovery and Depositions in Rhode Island will be a useful and trusted source for the Ocean State’s trial counsel, as well as a practical tool in their service to their clients. John M. (Jack) Reilly, Esq. Publisher

vi

Maryanne G. Jensen, Esq. Director of Publications September 2010

ABOUT THE EDITORS HON. PATRICIA A. HURST has been a senior trial justice of the Rhode Island Superior Court for some twenty years, presiding over complex civil and criminal jury trials and cases involving complex discovery disputes. By special assignment of the presiding justice of the Rhode Island Superior Court, she has managed and tried multiparty and complex litigation, including cases involving multifaceted constitutional issues, intricate legal and factual questions, and evidence of a highly technical and scientific nature. Justice Hurst has authored decisions and rulings that have set precedent in Rhode Island and have been cited in state appellate court decisions, federal administrative rulings, law journals, and law review articles. She pioneered the use of modern jury techniques in the Rhode Island state trial court, including the use of preliminary charges and juror note taking. She is a coauthor and editor of Model Civil Jury Instructions for Rhode Island and is a frequent presenter for legal and professional educational programs. Justice Hurst is a member of the International Association of Women Judges, American Bar Association judicial division, and American Judges Association. She is also a member of the executive committee and board of directors of the National Association of Women Judges. Prior to her judicial appointment, Justice Hurst maintained a private law practice with a concentration in civil litigation in the state and federal courts. MARK B. MORSE of the Law Office of Mark B. Morse in Providence has been representing individuals, families, and small businesses since 1983 in a wide range of services in business and commercial law, personal injury, and family law. He is board certified in civil trial law by the National Board of Trial Advocacy. He is admitted to practice before all state trial and appellate courts in Rhode Island and Massachusetts, as well as the U.S. Supreme Court, U.S. Court of Appeals for the First Circuit, and federal District Courts of Rhode Island and Massachusetts. Mr. Morse is a member of the board of directors and a former president of the Rhode Island Association for Justice. He is former chair of the Rhode Island Bar Association Superior Court Bench/Bar Committee and chaired the 2006 subcommittee for revision to the Rhode Island Rules of Civil Procedure. Mr. Morse is a frequent lecturer for the Rhode Island Bar Association and Rhode Island Association for Justice.

ABOUT THE ETHICS COMMENTATOR BARBARA L. MARGOLIS is deputy disciplinary counsel of the Rhode Island Supreme Court in Providence. Previously, she was chief legal counsel of the Legal Aid Society of Rhode Island, overseeing the representation of indigent Rhode Islanders in family court. She is a fellow of the Rhode Island Bar Foundation vii

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

and American Bar Foundation and a frequent lecturer on topics relating to professional responsibility. Ms. Margolis is a past chair of the Rhode Island Ethics Advisory Panel, past president of the National Organization of Bar Counsel, and former adjunct faculty member at Roger Williams University School of Law and the University of Rhode Island. She is a graduate of New England School of Law.

ABOUT THE AUTHORS PATRICK C. BARRY is a partner in the Providence firm of Morowitz & Barry, Ltd., where he focuses on catastrophic injury, wrongful death, and medical negligence litigation. He is the 2009–2010 president of the Rhode Island Association for Justice and a public member of the Rhode Island Board of Medical Licensure and Discipline. Mr. Barry has lectured for legal and professional organizations on personal injury topics ranging from patient safety to evidence and is often interviewed by the media for his insight. He is admitted to practice in Rhode Island and Massachusetts and is a graduate of Widener University School of Law (J.D., 1996) and Boston University (B.A., 1990). ARMANDO E. BATASTINI is counsel and a member of the business litigation and real estate groups of Nixon Peabody LLP in Providence. He focuses in complex civil litigation, including commercial, real estate, financial services, products liability, construction, employment, and probate disputes. Mr. Batastini also represents corporations and individuals before administrative agencies, with a particular emphasis on land use and development projects. He is a graduate of Roger Williams University and the U.S. Naval Academy. He is admitted to practice in Rhode Island, Massachusetts, and New York and before the U.S. Court of Appeals for the First Circuit and the federal District Courts of Rhode Island and Massachusetts. Mr. Batastini is a member of the house of delegates, nominating committee, volunteer lawyer program, Superior Court Bench/Bar Committee, and Federal Court Bench/Bar Committee of the Rhode Island Bar Association. He was the 2008 recipient of the bar association’s pro bono publico award. GIL A. BIANCHI, JR., is an associate with Kirshenbaum & Kirshenbaum in Cranston, where he concentrates in personal injury law, medical malpractice, products liability, and pharmaceutical negligence. He is a member of the American Bar Association, Rhode Island Bar Association, and Rhode Island Association for Justice. He is a past secretary of the Superior Court Bench/Bar Committee and was involved with the review and revision of the Rhode Island Superior Court Rules of Civil Procedure. From 2000 to 2002, he served as a law clerk with the Rhode Island Supreme Court. Mr. Bianchi is a graduate of Boston University School of Law and Connecticut College. viii

MICHAEL R. BOTTARO is a member of the Providence firm of Wistow & Barylick, Inc., where he is involved with insurance bad faith and medical malpractice. He is admitted to practice in Rhode Island, Massachusetts, and Colorado. He is a graduate of Boston College and the University of Colorado School of Law and served a clerkship with the Colorado Court of Appeals. JEFFREY S. BRENNER is a partner in the Providence office of Nixon Peabody LLP, where he is the leader of the real estate litigation team and construction group. He concentrates in business disputes, including complex real estate, construction, land use, and commercial litigation, and regularly practices before the Rhode Island Superior Court business calendar. Mr. Brenner is a graduate of the American University Washington College of Law and the University of Pennsylvania. While in law school, he was a member of the American University Law Review and served as a law clerk to the Rhode Island Supreme Court. He is admitted to practice in Rhode Island and Massachusetts and before the U.S. District Courts for Rhode Island and Massachusetts and the U.S. Court of Appeals for the First Circuit. Mr. Brenner is the author of the Rhode Island chapter for the American Bar Association’s Property Tax Deskbook (2009 ed.) and the “Handling of a Construction Dispute” chapter in Construction Law Litigation Strategies: Leading Lawyers on Analyzing the Basis of a Dispute, Preparing for Trial, and Understanding Construction Law (Aspatore Books 2007). He has been a presenter on litigation and land use at continuing legal education seminars, regional conferences, and national conventions. SEAN K. BROUSSEAU practices in Providence with the firm of Hodosh, Spinella & Angelone, PC, where his focus is in litigation, including personal injury, professional liability, insurance coverage, and commercial disputes. He has extensive experience representing professional athletes in contract negotiations. Mr. Brousseau is admitted to practice law in Rhode Island, Illinois, and Missouri and before the U.S. District Courts for Rhode Island and Southern Illinois. He is a graduate of Williams College and Saint Louis University School of Law, where he was articles editor for the American Health Lawyers Association’s Journal of Health & Life Sciences Law. Mr. Brousseau has contributed pro bono service to establish and maintain nonprofit status for charities, including the St. Louis Amateur Hockey Hall of Fame and St. Louis Blues Alumni Association. JACK A. CACCHIOTTI, JR., is a partner in the certified public accounting firm of Restivo Monacelli LLP in Providence, where he performs business valuations for estate planning and gifting, divorce litigation, C corporation to S corporation conversions, mergers and acquisitions, bank financing, buy-sell agreements, shareholder disputes, employee stock ownership plans, and purchase price allocations under FASB 141. He also assists clients with mergers and acquisitions as well as obtaining financing and management consulting. Mr. Cacchiotti holds the designations of accredited in business valuation (ABV), an accreditation that ix

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

recognizes special training, testing, and qualification in business valuation by the American Institute of Certified Public Accountants, and certified valuation analyst (CVA), an accreditation that recognizes special training and qualification in business valuation and adherence to the standards established by the National Association of Certified Valuation Analysts. He has practiced public accounting for twenty years and previously was a divisional controller for a NASDAQ publicly traded company. JOHN L. CALCAGNI III is a sole practitioner in Providence, where he focuses on criminal defense in state, federal, and military courts and complex personal injury litigation. He is admitted to practice in Rhode Island, Massachusetts, Connecticut, New York, and Florida as well as before the U.S. District Courts for Rhode Island, Massachusetts, Connecticut, and Northern/Eastern/Southern New York; the U.S. Court of Appeals for the First Circuit; and the U.S. Supreme Court. Mr. Calcagni is the author of “Contesting the Constitutionality of Restricting Criminal Defendant Opening Statements” in the Rhode Island Bar Journal (January/February 2005), for which he was awarded the journal’s annual writing award. He is a graduate of Roger Williams University School of Law and Bryant University. He serves on the board of governors for the Rhode Island Association for Justice and is a member of the Rhode Island, Massachusetts, Connecticut, New York, Florida, and American Bar Associations; the Rhode Island Criminal Defense Lawyers Association; and the American Association for Justice. Mr. Calcagni is also a U.S. Army Judge Advocate assigned to the U.S. Army Trial Defense Service. JOSHUA E. CARLIN is a partner in the Providence firm of White, Carlin & Kelly, PC, where he concentrates in general civil litigation, medical and legal malpractice defense, hospital and health care law, employment law, personal injury, and real estate. He is admitted to practice in Rhode Island and Massachusetts, as well as before the U.S. District Courts for Rhode Island and Massachusetts. Mr. Carlin is a graduate of Fordham University (J.D., 1999) and Providence College (B.A., 1995) and clerked for the Rhode Island Supreme Court. He is a member of Defense Counsel of Rhode Island, the Defense Research Institute, and the Rhode Island, Massachusetts, and Newport County Bar Associations. PETER J. CERILLI is a partner of Foley Cerilli, PC, in Providence, where he practices as a trial attorney focusing on personal injury claims, including wrongful death, medical malpractice, products liability, and other civil matters in Rhode Island and Massachusetts. He is listed in the Best Lawyers in America, Rhode Island Super Lawyers, and New England Super Lawyers. He has lectured on personal injury litigation for the Rhode Island Bar Association, the Rhode Island Association for Justice, and National Business Institute programs. Mr. Cerilli is a member of the American Board of Trial Advocates and has served on

x

the Rhode Island Special Commission on Medical Malpractice. He is a graduate of Boston College Law School and Brown University. PETER J. COMERFORD is a litigation attorney in the Providence firm of Coia & Lepore, Ltd., where he handles civil matters in Superior Court and federal District Court, as well as appeals to the Rhode Island Supreme Court and First Circuit Court of Appeals. He has extensive trial experience in personal injury, construction, insurance, and commercial litigation. He was recognized by Rhode Island Lawyers Weekly as “Lawyer of the Year” in 2007. Mr. Comerford is a member of the Rhode Island Association for Justice and the Rhode Island Bar Association Superior Court Bench/Bar Committee. He is a graduate of St. John’s University School of Law (J.D., 1983) and Providence College (B.A., cum laude, 1980). He is the author of “Medical Affidavits in Rhode Island” in the Rhode Island Bar Journal (February 1993). TIMOTHY J. CONLON is a sole practitioner in Providence, where he specializes in family law and child sexual abuse cases. Previously, he was the director of management information systems at the Rhode Island Department of the Attorney General, where he was responsible for computer crime prosecutions in the mid 1980s, when the field of computer crime was in its infancy. He was also a law clerk to Chief Justice Joseph A. Bevilaqua of the Supreme Court of Rhode Island and Justice William J. Harbison of the Supreme Court of Tennessee, assistant public defender with the Rhode Island Department of the Public Defender, and special assistant attorney general with the Appellate Division and Public Corruption Unit. Mr. Conlon is a member of the child sexual abuse group of the American Association for Justice (as well as editor of the family law section of its newsletter), the board of governors of the Rhode Island Association for Justice, the Rhode Island Bar Association, and the National Association of Counsel for Children. He is also a fellow of the Rhode Island Bar Foundation. Mr. Conlon is a graduate of Vanderbilt University (J.D., 1980) and Brown University (B.A., 1977). MAURICE J. CUSICK is a sole practitioner in Newport focusing on corporate and LLC law. Previously, he was engaged in criminal and civil law in federal courts, specializing in discovery and summary judgment proceedings. He is a graduate of Salve Regina College and Marquette University Law School, where he was on the editorial board of the Marquette Law Review. SONJA L. DEYOE is an associate in the East Providence firm of Rappoport, DeGiovanni & Caslowitz, Inc., where she focuses on plaintiff civil litigation issues, including general personal injury matters, employment discrimination cases, and business litigation. She is admitted to practice in Rhode Island, Connecticut, and Massachusetts and before the U.S. District Courts for Rhode Island and Massachusetts and the Mashantucket Pequot Tribal Court. Ms. Deyoe is a xi

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

member of the Lawyers Helping Lawyers Committee for the Rhode Island Bar Association and is involved with the Rhode Island Legal Education Partnership. She is an adjunct professor at Nichols College. LEAH J. DONALDSON is with the law offices of Motley Rice LLC in Providence, where she works on behalf of individuals injured by defective medical devices, dangerous pharmaceutical drugs, and medical malpractice. Her practice also includes transportation law and antiterrorism and human rights. She represented hundreds of plaintiffs in the Kugel Mesh hernia patch litigation, which was consolidated in the Rhode Island Superior Court and transferred by the MDL panel to the U.S. District Court for the District of Rhode Island. She is admitted to practice in Rhode Island, Massachusetts, and New York and before the U.S. District Court for the District of Rhode Island. Ms. Donaldson is a graduate of the University of West Georgia (B.A.) and Roger Williams University School of Law (J.D., cum laude), where she was on the editorial staff of its law review. She is a board member of the Rhode Island Women’s Bar Association and a member of the American Association for Justice, the American Bar Association, the Rhode Island Association for Justice, the Rhode Island Bar Association, and the American Civil Liberties Union. MICHAEL FIELD is a special assistant attorney general with the Rhode Island Department of the Attorney General in Providence. JOHN S. FOLEY is a partner of Foley Cerilli, PC, in Providence, where he devotes his practice to the preparation and trial of personal injury claims in Rhode Island and Massachusetts. He is listed in the Best Lawyers in America, Rhode Island Super Lawyers, and New England Super Lawyers. He has lectured on topics related to personal injury litigation for the Rhode Island Bar Association, the Rhode Island Association for Justice, and Roger Williams University School of Law. Mr. Foley is a member of the American Board of Trial Advocates and a director of the Rhode Island Association for Justice. He is a graduate of Boston University School of Law and the University of Rhode Island. Prior to entering private practice, he was a special assistant attorney general in the Rhode Island Department of the Attorney General. KELLY M. FRACASSA is a partner in the Westerly firm of Naccarato & Fracassa, where he concentrates in civil litigation, including personal injury, real estate, contract and construction disputes, and municipal law issues. He is a member of the Rhode Island Bar Association and the Rhode Island Association for Justice. Mr. Fracassa has authored amicus briefs submitted to the Rhode Island Supreme Court and articles for the Rhode Island Bar Journal, including “Constitutional Prospects for Same-Sex Marriage in Rhode Island” (December 2000), for which he won the journal’s first place 2000 writing award. He is a

xii

graduate of Suffolk University Law School, Penn State University, and Tulane University. MARK W. FREEL is a partner in the Providence office of Edwards Angell Palmer & Dodge LLP, where he handles matters involving shareholder disputes in closely held corporations, construction and real estate disputes, cases involving unfair competition, trademarks and trade secrets, covenants not to compete, and probate and family business disputes. He also represents and advises manufacturers on issues concerning the protection of their intellectual property, proprietary business information, and products liability actions. He is experienced in matters involving constitutional and civil rights, including First Amendment rights and Section 1983 claims. Mr. Freel is admitted to practice before the U.S. District Courts for the Districts of Rhode Island, Connecticut, and Massachusetts and the U.S. Court of Appeals for the First, Second, and Federal Circuits. He is a graduate of the University of Connecticut School of Law and the University of New Hampshire. He is a member of the Defense Research Institute, the Rhode Island Bar Association, and the Rhode Island Manufacturers Association. Mr. Freel was named a top Rhode Island litigator in the 2009 edition of Chambers USA: America’s Leading Lawyers in Business and has been named a Rhode Island “Super Lawyer” since 2007 by Law & Politics magazine. FRANCIS A. GASCHEN has been an attorney with the Rhode Island Commission for Human Rights in Providence since January 2004. Formerly, he was in private practice and was a state legislator. He is admitted to practice in Rhode Island and Florida and before the U.S. District Court and U.S. Supreme Court. He was a recipient of the Congressman John E. Fogarty Award for his work in improving the quality of life for Rhode Islanders with disabilities and a participant of the USA/USSR Conference on Law in Moscow. Mr. Gaschen has spoken at the University of Rhode Island Charles T. Schmidt, Jr., Labor Research Center annual conference on labor and employment law, the U.S. Equal Employment Opportunities Commission national conference on enforcement best practices, and Rhode Island Bar Association programs on employment law. He is a graduate of the University of Villanova School of Law (J.D., 1975) and the University of Rhode Island (B.A., cum laude, 1972). MARK H. GRIMM is trial counsel with the Providence firm of Marasco & Nesselbush LLP, where he focuses on civil litigation, primarily in medical malpractice, personal injury, and products liability. He is a member of the American Association for Justice and the Rhode Island Association for Justice and serves on the Superior Court and Federal Court Bench/Bar Committees. Mr. Grimm is admitted to practice in Rhode Island and Massachusetts and before the U.S. District Courts for Rhode Island and Massachusetts and the U.S. Court of Appeals for the First Circuit. He is a frequent presenter on trial practice at continuing legal education programs and a former adjunct faculty member at Roger Williams xiii

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

University. He is a graduate of Boston College Law School (J.D., 1984) and Brown University (B.A., 1980). LAURA C. HARRINGTON of the Harrington Law Group in Pawtucket concentrates on medical malpractice and employment issues, including discrimination claims, contract negotiations, and family law. She is also a registered nurse. Her background and experience as a nurse complement her legal experience, particularly in the personal injury and malpractice arenas. Ms. Harrington is a graduate of Temple University School of Law and the University of Pennsylvania School of Nursing. PAUL M. KESSIMIAN is an associate in the Providence and New Bedford offices of Partridge Snow & Hahn LLP, where he focuses on representing clients in complex civil litigation, including breach of contract, commercial, insurance, intellectual property, and real estate disputes at the trial and appellate levels. Mr. Kessimian authored materials for the Columbia Business Law Review and the Federation of Defense and Corporate Counsel on issues ranging from the interpretation and application of the mail fraud statute to the implications of the Supreme Court decisions in Iqbal and Twombly. He has been selected as a “Rising Star” in business litigation by Rhode Island Super Lawyers and is a graduate of Columbia University School of Law and Providence College. CHARLES S. KIRWAN of Charles S. Kirwan & Associates in Providence has twenty-five years of experience handling all aspects of employment law, multimillion-dollar construction delay claims, and federal contracts, representing employers and employees as well as contractors and subcontractors. He has litigated federal court wage and hour overtime cases on behalf of underpaid workers and defended employers subject to audits by the U.S. Department of Labor and the Rhode Island Department of Labor and Training. He is a graduate of the Georgetown University Law Center and Brown University. HOWARD B. KLEIN is counsel to the professional liability group of the Federal Deposit Insurance Corporation in Arlington, Virginia. He practiced at the Providence litigation firm of Decof & Decof, PC (and its predecessor Decof & Grimm, PC), from 1992 through early 2010, where he represented the Rhode Island Depositors Economic Protection Corporation in professional liability actions arising out of the 1991 Rhode Island banking crisis. He also represented injured individuals and their families in medical malpractice, products liability, and other serious personal injury cases at the trial and appellate levels. Mr. Klein served as a law clerk to Chief Justice Francis J. Boyle of the U.S. District Court for the District of Rhode Island. He is a 1990 cum laude graduate of Suffolk University Law School.

xiv

DONNA M. LAMONTAGNE is a partner in the Providence firm of Zizik, Powers, O’Connell, Spaulding & Lamontagne, PC, where she specializes in general insurance defense, insurance coverage, products liability, bad faith, employment litigation, environmental litigation, construction, and complex personal injury litigation. She is admitted to practice in Rhode Island and Massachusetts and before the U.S. District Courts for the Districts of Rhode Island and Massachusetts, the U.S. Court of Appeals for the First Circuit, and the U.S. Supreme Court. Ms. Lamontagne is a member of the Superior Court Arbitration Panel, the Rhode Island Bar Association, the Massachusetts Bar Association, the Rhode Island Women’s Bar Association, Defense Counsel of Rhode Island, the Defense Research Institute, the Association of Defense Trial Attorneys, and the International Association of Defense Counsel. She is a past chair of the Superior Court Bench/Bar Medical Malpractice Subcommittee, which created a new mandatory mediation program for medical malpractice cases implemented by the Superior Court of Rhode Island. She is a graduate of Boston College Law School (J.D., cum laude, 1993) and College of the Holy Cross (B.A., cum laude, 1990). BROOKS R. MAGRATTEN is a partner in Pierce Atwood LLP in Providence with twenty years of experience in insurance, products liability, and commercial litigation. He is the northeast regional director of DRI/The Voice of the Defense Bar, chairing its life, health, and disability committee. Mr. Magratten is vice president of the Rhode Island chapter of the Federal Bar Association, presidentelect of Defense Counsel of Rhode Island, chair of the Federal Court Bench/Bar Committee of the Rhode Island Bar Association, and a fellow of the Rhode Island Bar Foundation. He is a member of the International Association of Defense Counsel, the Federation of Defense and Corporate Counsel, the Product Liability Advisory Council, and the Association of Life Insurance Counsel. He is the editor of the American Bar Association’s ERISA Survey of Federal Circuits. Mr. Magratten is admitted to practice in Rhode Island, Massachusetts, and Connecticut federal courts. He is a frequent author and lecturer on ERISA issues and trial skills. He is a graduate of Bryant College (M.B.A., 1996), Dickinson School of Law (J.D., 1986), and Hamilton College (B.A., 1983). HOWARD A. MERTEN is a partner with Partridge Snow & Hahn LLP in Providence, where he represents businesses, financial services institutions, and individuals in complex civil litigation, focusing on commercial litigation products liability, insurance, media, and intellectual property matters. He is a fellow of the Litigation Counsel of America and a member of the Federation of Defense and Corporate Counsel, Lawyers for Civil Justice, the Defense Research Institute, the American and Rhode Island Bar Associations, the Maritime Law Association, the Media Law Resource Center, and Defense Counsel of Rhode Island. He is also vice president of Defense Counsel of Rhode Island’s board of directors. Mr. Merten has been recognized in Best Lawyers in America since 1997 in xv

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

the media law and commercial litigation categories as well as in Super Lawyers and Chambers USA in the commercial litigation category. He is a graduate of Boston University School of Law and Princeton University. JEFFREY M. PADWA is a sole practitioner in Warwick, where he focuses on wrongful death and personal injury cases involving the elderly. He is admitted to practice in Rhode Island and Massachusetts. Mr. Padwa is a graduate of Suffolk University Law School (J.D., cum laude, 1992) and Emory University (B.A., 1985). He is the author of Be an Advocate—How to Keep Loved Ones Healthy & Safe When They are Residents in Nursing Homes (2009). He is a past president of the Rhode Island Association for Justice and a past chair of the new lawyers division of the American Association for Justice. JESSICA L. PAPAZIAN-ROSS of Visconti & Boren, Ltd., in Providence concentrates in construction law, contract law, personal injury, and employment law, handling trials, appeals, mediations, and arbitrations. She is admitted to practice in Rhode Island and before the U.S. District Courts for the Districts of Rhode Island and Connecticut, as well as the U.S. District Court for the District of Columbia. Ms. Papazian-Ross is a member of the Rhode Island Bar Association Superior Court Bench/Bar Committee and a coauthor of Model Civil Jury Instructions for Rhode Island, which was undertaken by the committee. She is a graduate of Vermont Law School (J.D., 1988) and the University of South Florida (B.A., 1985). REBECCA TEDFORD PARTINGTON is an assistant attorney general with the Rhode Island Department of the Attorney General in Providence. STANLEY F. PUPECKI is an associate with the Providence firm of Rice Dolan & Kershaw, where he focuses on insurance defense litigation. He is admitted to practice in Rhode Island and Massachusetts and before the U.S. District Court for the District of Rhode Island. Previously, he was a law clerk with the Rhode Island Supreme Court and served internships with the Honorable Bruce M. Selya of the U.S. Court of Appeals for the First Circuit and Magistrate Jacob Hagopian of the U.S. District Court for the District of Rhode Island. Mr. Pupecki is a graduate of Worcester State College (B.A., 1998) and Roger Williams University School of Law (J.D., 2002), where he was articles editor of the Roger Williams University Law Review. MICHAEL PATRICK QUINN, JR., is an associate in the Providence firm of Gidley, Sarli & Marusak LLP, where he focuses on litigation, representing plaintiffs and defendants, and specializes in medical malpractice and products liability law. He is admitted to practice in Rhode Island and Massachusetts. Mr. Quinn was listed as a “Rising Star” in the 2009 issues of New England Super

xvi

Lawyers and Rhode Island Super Lawyers. He is a graduate of Villanova University School of Law (J.D., 2006) and the University of Rhode Island (B.A., 2003). RAYMOND M. RIPPLE is a senior associate in the Providence office of Edwards Angell Palmer & Dodge LLP, where he represents businesses in a broad range of litigation, including corporate, commercial, and financial services. He is a graduate of Providence College and the University of Notre Dame Law School, where he was managing editor of the Notre Dame Journal of Law, Ethics & Public Policy. JEFFREY C. SCHRECK is a sole practitioner in Providence focusing on business litigation, real estate litigation, and contract disputes. He is experienced in the areas of securities fraud, antitrust, adverse possession, accounting and legal malpractice, contract breaches, unlawful discrimination, fraud, negligence, and lender liability. Mr. Schreck is a graduate of Rutgers University School of Law/Newark and Brown University. He is a cochair of the U.S. District Court for the District of Rhode Island Local Rules Review Committee and a member of the Superior Court Bench/Bar Committee. B. MITCHELL SIMPSON III has been a member of the faculty at the Roger Williams University School of Law in Bristol since 1996, having taught Rhode Island civil procedure, international law, pretrial procedure, legal drafting, Anglo-American legal tradition, and legal writing and research. From 1980 to 2000, he practiced law in Newport, concentrating on civil and corporate matters, including insurance defense. Previously, he was a research scholar with the Naval War College and on active duty with the U.S. Navy. Mr. Simpson is a graduate of the Fletcher School of Law and Diplomacy of Tufts University (Ph.D., M.A.L.D., and M.A.), the University of Pennsylvania Law School (LL.B.), and Colgate University (A.B). He is the author of “Don’t Curse ’Em, Sue ’Em: Cell Phone Use While Driving as Evidence of Negligence” in the Rhode Island Bar Journal (March/April 2009) and a coauthor of the Rhode Island Rules of Civil Procedure with Commentaries (2006). MANUEL R. SMITH of Wellfleet, Massachusetts, has been a forensic economic consultant for thirty years, assisting attorneys in the evaluation of economic damages in medical malpractice, wrongful death, personal injury, wrongful termination, and employment discrimination. He serves plaintiff and defendant attorneys and has provided expertise in the development and analysis of many structured settlements. He has extensive courtroom experience as an expert economic witness. As a member of the National Association of Forensic Economics, Mr. Smith has participated in professional workshops, continuing education sessions, and conferences. He served as an economic resources advisor to Trial Lawyers Care, Inc., the nonprofit corporation created by the American Trial Lawyers Association to assist claimants filing for compensation from the Federal xvii

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Victims Compensation Fund, Pub. L. No. 107-42, established for families of victims of the September 11, 2001, terrorist attacks. RANDALL L. SOUZA is a partner in the Pawtucket office of Shechtman Halperin Savage LLP, where he focuses in commercial, business, and complex civil litigation, including contract disputes, creditors’ rights, construction disputes, business valuation proceedings, corporate dissolutions, lender liability actions, receiverships and insolvencies, noncompetition agreements, professional negligence claims, tax appeals, and intellectual property matters. He has extensive experience representing financial institutions, business owners, executives, corporations, shareholders, and professionals. Mr. Souza is a member of the Rhode Island Bar Association Superior Court Bench/Bar Committee. He is admitted to practice in all state and federal courts in Rhode Island and Massachusetts as well as before the U.S. Court of Appeals for the First Circuit. He is a graduate of Boston College Law School (J.D., cum laude, 1988) and Amherst College (B.A., magna cum laude, 1985). HOWARD E. WALKER is a sole practitioner in Hope Valley, where he specializes in business/admiralty litigation and lawyer ethics/professional responsibility. He is a member of the American Bar Association Litigation Section and Center for Professional Responsibility as well as the Rhode Island Bar Association ethics and professional responsibility committee, technology in practice committee, and Superior Court and Federal Court Bench/Bar Committees. He is also a member of the Maritime Law Association of the United States and a proctor in admiralty. Mr. Walker is a frequent lecturer on litigation, legal technology, and ethics and professional responsibility for Rhode Island Bar Association and National Business Institute programs. Previously, he was a partner with the Providence firm of Hinckley, Allen & Snyder LLP. He is a graduate of the University of Illinois and Boston University School of Law, where he was a member of the Boston University Law Review. WILLIAM M. WHITE is the sole proprietor of William White Legal Video Services in Cranston, having specialized in legal video for twenty years. He conducts videotaped depositions, day-in-the-life videos, expert video testimony, trial setup, and mock trials. Mr. White worked with a team on the investigations of the Dupont Plaza Hotel fire in Puerto Rico and the Station Nightclub fire in Rhode Island.

xviii

TABLE OF CONTENTS VOLUME I Chapter 1

An Introduction to Rhode Island Discovery Practice Hon. Patricia A. Hurst B. Mitchell Simpson III

Chapter 2

Analyzing Discovery and Investigation Issues Jessica L. Papazian-Ross

Chapter 3

Creating a Discovery Plan Mark H. Grimm

Chapter 4

Selected Case Investigation Techniques Armando E. Batastini

Chapter 5

Conducting Internal Investigations Jeffrey C. Schreck

Chapter 6

Obtaining Information from Rhode Island State and Local Government Sources Rebecca Tedford Partington Michael Field

Chapter 7

Using the Internet in Discovery and Investigation Michael Patrick Quinn, Jr.

Chapter 8

Spoliation and Preservation of Evidence Peter J. Cerilli

Chapter 9

Protecting Confidential and Privileged Information Before and During Discovery John L. Calcagni III

Chapter 10

Interrogatories Peter J. Comerford

xix

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Chapter 11

Requests for Documents and Things and for Entry Upon Land Stanley F. Pupecki

Chapter 12

Organizing Documents Identified During Discovery; Document Management by Going Paperless Timothy J. Conlon Laura C. Harrington

Chapter 13

Depositions John S. Foley

Chapter 14

Deposing Medical and Technical Experts Patrick C. Barry

Chapter 15

Audiovisual Depositions Jeffrey M. Padwa William M. White

Chapter 16

The Recordkeeper Deposition Michael R. Bottaro

VOLUME II Chapter 17

Rule 30(b)(6) Howard A. Merten Paul M. Kessimian

Chapter 18

Deposing Accountants and Economists Jack A. Cacchiotti, Jr. Mark W. Freel Raymond M. Ripple Manuel R. Smith

Chapter 19

Physical and Mental Examinations Sean K. Brousseau

xx

Chapter 20

Requests for Admissions Maurice J. Cusick

Chapter 21

Obtaining Medical Records Gil A. Bianchi, Jr.

Chapter 22

Attorney-Client Communications Privilege and the Work-Product Doctrine Donna M. Lamontagne

Chapter 23

Discovery from Out-of-State and Foreign Nonparty Witnesses Randall L. Souza

Chapter 24

Discovery Motions and Appeals Kelly M. Fracassa

Chapter 25

Electronic Discovery Howard E. Walker

Chapter 26

Discovery Relating to Experts Howard B. Klein

Chapter 27

Differences Between Federal and State Discovery Practice Brooks R. Magratten

Chapter 28

Discovery Before the RICHR Francis A. Gaschen

Chapter 29

Discovery in Alternative Forums— Administrative Agencies Charles S. Kirwan

Chapter 30

Rhode Island Superior Court’s Business Calendar Jeffrey S. Brenner

xxi

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Chapter 31

Discovery for Court-Annexed Arbitrations and Mediations Sonja L. Deyoe

Chapter 32

Discovery in Medical Negligence Cases Joshua E. Carlin

Chapter 33

Discovery in Mass Tort Litigation/Consolidated Cases Leah J. Donaldson

Table of Cases Table of Statutes, Rules, and References Index

xxii

TABLE OF EXHIBITS EXHIBIT 3A—Sample Rule 30(b)(6) Deposition Notice ............................. 3–25 EXHIBIT 3B—Sample Miscellaneous Petition to Produce Records ............. 3–27 EXHIBIT 3C—Sample Miscellaneous Petition to Perpetuate Testimony...... 3–29 EXHIBIT 3D—Motion to Modify Scheduling Order .................................... 3–31 EXHIBIT 4A—Checklist for Client Interviews ............................................. 4–23 EXHIBIT 5A—Selected Bibliography........................................................... 5–41 EXHIBIT 6A—Sample Request Letter.......................................................... 6–23 EXHIBIT 6B—Sample Denial Letter ............................................................ 6–25 EXHIBIT 6C—State Agencies Contact Information...................................... 6–27 EXHIBIT 6D—State Government Contact Information ................................ 6–37 EXHIBIT 7A—List of Search Engines .......................................................... 7–27 EXHIBIT 8A—Sample Jury Instruction on Spoliation.................................. 8–17 EXHIBIT 9A—Sample E-Mail ...................................................................... 9–31 EXHIBIT 9B—Sample Fax Cover Sheet ....................................................... 9–33 EXHIBIT 9C—Sample Privilege Log............................................................ 9–35 EXHIBIT 9D—Sample Motion for Protective Order..................................... 9–37 EXHIBIT 9E—Sample Protective Order ....................................................... 9–39 EXHIBIT 9F—Stipulated Confidentiality Order ........................................... 9–41 EXHIBIT 9G—Sample Stipulated “Counsel Only” Protective Order ........... 9–45 EXHIBIT 10A—Plaintiffs’ Motion to Compel Defendant’s Answers to Interrogatories and Request for Production.............................................. 10–29 EXHIBIT 10B—Conditional Order ............................................................. 10–31 EXHIBIT 10C—Plaintiff’s Interrogatories Propounded to Defendant ........ 10–33 EXHIBIT 10D—Defendant’s Interrogatories Propounded to Plaintiff ........ 10–39 EXHIBIT 11A—Sample Request for Production of Documents ................. 11–31 EXHIBIT 11B—Sample Response to Request for Production of Documents ............................................................................................... 11–33 EXHIBIT 14A—Excerpts from Rule 26 of the Rhode Island Superior Court Rules of Civil Procedure .................................................................... 14–25 EXHIBIT 14B—Sample Language Requesting That Deponent Bring Documents to Deposition ................................................................... 14–27 EXHIBIT 16A—Sample Cover Letter to Enclose with Subpoena Duces Tecum ................................................................................................ 16–19

xxiii

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

EXHIBIT 16B—Sample KOR Deposition Questions (Records Only).........16–21 EXHIBIT 16C—Sample KOR Deposition (Live Testimony).......................16–23 EXHIBIT 17A—Sample Notice of Rule 30(b)(6) Deposition......................17–27 EXHIBIT 17B—30(b)(6) Preliminary Matters Checklist.............................17–29 EXHIBIT 18A—Checklist of Information Needed for Economic Appraisal.......................................................................................................18–23 EXHIBIT 21A—R.I. Gen. Laws § 5-37.3-4.................................................21–11 EXHIBIT 21B—Sample Authorization for Use of Protected Health-Care Information ...................................................................................................21–17 EXHIBIT 23A—Motion for Issuance of Commissions................................23–21 EXHIBIT 23B—Order for Commission to Take Deposition and Issue Out-of-State Subpoena..................................................................................23–23 EXHIBIT 23C—Proposed Order Pursuant to New Jersey Court Rule 4:11-4 ...................................................................................................23–25 EXHIBIT 23D—Subpoena for Issuance to New Jersey Witness..................23–27 EXHIBIT 23E—Deposition Notice ..............................................................23–29 EXHIBIT 23F—Application for Issuance of Request for the Examination of Witness Pursuant to the Hague Convention for the Taking of Evidence Abroad ..........................................................................................................23–31 EXHIBIT 23G—Request for International Judicial Assistance Pursuant to the Hague Convention...............................................................................23–33 EXHIBIT 23H—Sample Cover Letter..........................................................23–37 EXHIBIT 23I—Originating Motion and Associated Papers for Filing with Australian Court....................................................................................23–39 EXHIBIT 23J—Miscellaneous Petition for Issuance of Subpoena(s) to Compel Deposition and/or Inspection of Documents for Use in an Out-of-State Action..............................................................................23–47 EXHIBIT 23K—Motion for Order to Issue Subpoena for Use in Foreign Litigation .....................................................................................23–49 EXHIBIT 23L—Proposed Order Issuing Subpoena in Rhode Island for Use in Foreign Litigation ..............................................23–51 EXHIBIT 23M—Bibliography.....................................................................23–53 EXHIBIT 24A—Motion to Shorten Time to Serve Answers to Interrogatories...........................................................................................24–49 EXHIBIT 24B—Motion to Compel Answer to Deposition Question ..........24–51 EXHIBIT 24C—Motion to Compel Answers to Interrogatories ..................24–53

xxiv

EXHIBIT 24D—Motion to Compel Attendance at Deposition.................... 24–55 EXHIBIT 24E—Motion to Compel More Responsive Answers to Interrogatories .......................................................................................... 24–57 EXHIBIT 24F—Motion to Compel Production of Documents.................... 24–59 EXHIBIT 24G—Motion to Default ............................................................. 24–61 EXHIBIT 24H—Motion to Dismiss............................................................. 24–63 EXHIBIT 24I—Motion to Determine Sufficiency of Responses to Request for Admissions............................................................................ 24–65 EXHIBIT 24J—Motion for Entry of Final Judgment of Dismissal ............. 24–67 EXHIBIT 24K—Motion to Take Deposition Less than Thirty Days After Service of Complaint .......................................................................... 24–69 EXHIBIT 24L—Motion to File Request for Production with Response Date of ________ ......................................................................................... 24–71 EXHIBIT 24M—Motion to Propound More than Thirty Interrogatories..... 24–73 EXHIBIT 24N—Motion for Protective Order.............................................. 24–75 EXHIBIT 24O—Motion to Take Deposition by Telephone ......................... 24–77 EXHIBIT 25A—E-Discovery Bibliography ................................................ 25–31 EXHIBIT 25B—Excerpt from the Sedona Guidelines................................. 25–33 EXHIBIT 25C—Sample Electronic Discovery Outline for Preparing or Deposing a Business Witness............................................. 25–37 EXHIBIT 25D—Sample Questionnaire for Interviewing Client Technology Personnel .................................................................................. 25–43 EXHIBIT 25E—Sample Notices (Formal and Basic).................................. 25–49 EXHIBIT 25F—Sample Preservation Letter................................................ 25–51 EXHIBIT 25G—Model Order Regarding Preservation ............................... 25–53 EXHIBIT 26A—Sample Expert Interrogatory............................................. 26–29 EXHIBIT 26B—Sample Scheduling Order ................................................. 26–31 EXHIBIT 32A—Sample Interrogatories in a Medical Malpractice Case, Issued by Defendant ..................................................................................... 32–23 EXHIBIT 32B—Sample Document Request ............................................... 32–29 EXHIBIT 33A—Sample Protective and Confidentiality Order ................... 33–13 EXHIBIT 33B—Sample Order for Master Discovery Sets.......................... 33–17 EXHIBIT 33C—Ex Parte Communication with Treating Physicians .......... 33–19

xxv

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

xxvi

CHAPTER 1

An Introduction to Rhode Island Discovery Practice Hon. Patricia A. Hurst B. Mitchell Simpson III § 1.1

Rules of Civil Procedure ...................................................... 1–1

§ 1.2

Necessity for Discovery ........................................................ 1–2

§ 1.3

Purpose of Discovery............................................................ 1–2

§ 1.4

Scope and Limits of Discovery ............................................ 1–3

§ 1.5

The Methods of Discovery ................................................... 1–4

§ 1.6

Necessity for Professionalism and Civility ......................... 1–5

§ 1.7

Rhode Island’s Motion Practice.......................................... 1–7

§ 1.8

Conclusion........................................................................... 1–10

1–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

1–ii

CHAPTER 1

An Introduction to Rhode Island Discovery Practice Hon. Patricia A. Hurst B. Mitchell Simpson III Scope Note This chapter offers an introduction to discovery practice in the Rhode Island state and federal courts. It introduces the reader to the treatment of discovery in the Rules of Civil Procedure, and discusses the necessity for and purpose of discovery, and its scope and limits. The chapter also provides insight into the methods by which discovery is acquired, and includes commentary on modern motion practice and civility in discovery practice.

§ 1.1

RULES OF CIVIL PROCEDURE

Modern discovery was introduced into Rhode Island with the adoption in 1966 of the Rhode Island Superior Court Rules of Civil Procedure and it is governed by Rules 26 through 37, all of which form a coherent body of interrelated rules. At the time the Rhode Island Superior Court Rules of Civil Procedure were adopted, then Superior Court Associate Justice Frank R. Licht and former Governor of the State of Rhode Island commented on the role of the discovery rules. His statement bears repeating and prudent counsel are advised to take note of it: The discovery provisions of the new (sic) rules require liberal interpretation if they are to serve the intended purpose. The so-called ambush theory of trial is laid to rest. Both sides are now able, if they know the rules and use them skillfully, to come to trial better prepared to meet contentions, arguments and evidence of the other side. Obviously, the rules cannot affect the relative resources of the party. Nor will they require a wholesale turnover of pre-trial preparation but they will permit each side to use the interrogatories, 1–1

§ 1.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

depositions and the motion to produce to equalize more nearly discovery of controlling facts during the period of pre-trial . . . the rules attempt to remove the sporting theory from the trial of a case and attempt to permit each party to have his cause determined, as far as is reasonably possible, on the merits. The extent to which the rules will succeed depends upon the intelligent application and cooperative action by the Court and Bar. Frank R. Licht, “Observations on Some Aspects of the Discovery Provision of the New Rules,” 1966 Rhode Island Bar Annual 1, 7.

§ 1.2

NECESSITY FOR DISCOVERY

Rule 8 of the Rhode Island Superior Court Rules of Civil Procedure, “General Rules of Pleading,” introduced the concept of notice pleading into Rhode Island practice. Rule 8(a) states that a pleading that sets forth a claim for relief (that is, a complaint, counter-claim, cross-claim, or third-party claim) need only contain “a short plain statement of the claim showing the pleader is entitled to relief” and a demand for judgment. In other words, a pleading need not specify a legal theory of recovery or address the elements or ultimate facts that must be proven at trial before relief may be granted. Thus, a defending party could have difficulty preparing for trial without more specific information produced by discovery. Moreover, discovery is necessary to bring about the “just, speedy, and inexpensive determination of every action” on its merits as required by the strictures of Rule 1. See Haley v. Town of Lincoln, 611 A.2d 845, 848 (R.I. 1992). But there are limits. Submitting only a bill does not meet the requirements of a notice pleading in Rule 8(a). Dellefratte v. Estate of Dellefratte, 941 A.2d 797 (R.I. 2007). Hence, discovery is indispensable.

§ 1.3

PURPOSE OF DISCOVERY

Discovery has six primary purposes, all of which are consistent with the overall purpose of the Rhode Island Superior Court Rules of Civil Procedure as stated in Rule 1. They are as follows: • To narrow issues. When opposing counsel are both aware of the facts of a particular case, it should be clear which facts are in dispute and 1–2

INTRODUCTION TO RI DISCOVERY PRACTICE

§ 1.3

• To obtain evidence. The means of discovery are designed so that counsel may obtain evidence, admissible or otherwise, which could be in the form of statements, documents, or tangible items. •

To expose groundless or fraudulent claims. Clearly the party making a claim for relief should have some discoverable evidence to support that claim. If not, the inability to produce such evidence will expose the claim as groundless, if not fraudulent, and could lead to a timely dismissal or summary judgment.

• To eliminate unfair surprise. As Justice Licht pointed out, “the ambush theory of trial is laid to rest.” What he meant is that a party may not withhold crucial evidence until trial to surprise opposing counsel who would have been deprived of the opportunity to evaluate it or to respond to it adequately. The underlying concept of these rules is that a party must make available to the opposing party evidence supporting a claim or a defense. However, there is no obligation to make a voluntary disclosure in the absence of a specific request. The opposing party must request this evidence in accordance with the rules. •

To further the use of summary judgment. The purpose of summary judgment is to weed out claims that are without merit. It should be granted if there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Super. R. Civ. P. 56(c). Appropriate discovery should be able to ascertain whether there is “a genuine issue of material fact.”

• To facilitate settlement. Facts or evidence resulting from discovery can reveal to both counsel the strengths and weaknesses of both cases. With this perspective counsel can advise their clients as to the advisability (or even necessity) of settling the case before trial.

§ 1.4

SCOPE AND LIMITS OF DISCOVERY

The scope of discovery is very broad. Rule 26(b)(1) permits discovery of “any matter” which is relevant to the subject matter so long as it is not privileged.

1–3

§ 1.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Discovery may even be had of information that is not admissible, so long as it is “reasonably calculated” to lead to the discovery of admissible evidence. In addition, certain amendments to the rules have added to the materials and information that can be discovered. For example, the existence and contents of an insurance agreement are now discoverable. The 1995 revision to the rules included Rule 26(b)(2), which permits this discovery. The purpose of the rule is to permit a party to evaluate the “advisability” of settlement by making or accepting an offer. See Kent et al., Rhode Island Civil and Appellate Procedure with Commentaries, volume I, 26:4. Similarly, the qualifications and proposed testimony at trial of experts are discoverable. (These matters also are discussed at greater length elsewhere in this volume.) So, too, the enabling act that permits each court to adopt its own rules of practice, R.I. Gen. Laws § 8-6-2, contains only one limitation. That is, to specifically prohibit the adoption of any rule that would require a party “to produce. . . an income tax return, W2 statement or copies thereof.” R.I. Gen. Laws § 8-6-2(b). (Instead, ordering the production of such materials is left to the sound discretion of the trial justice, who has the inherent authority to determine whether such materials are discoverable and, if so, fashion any appropriate protective orders containing limitations on their dissemination. DeBiasio v. Gervais Elecs. Corp., 459 A.2d 941 (R.I. 1983).) There are limits on discovery, however, and any party who feels that a discovery request is improper for any reason may apply to the court for a protective order under Rule 26(c). The court may then enter an order, as required by justice, to protect a party or a person “from annoyance, embarrassment, oppression, or undue burden or expense.” Super. R. Civ. P. 26(c). In addition, privileged materials remain protected under the rules. What constitutes a privileged matter can be a knotty question and the topic is covered in greater depth in other chapters herein. Generally, though, in the context of the attorney-client relationship, an attorney’s work product is absolutely privileged, but trial preparation material is only qualifiedly privileged under Rule 26(b)(3). Thus, the Rhode Island Superior Court Rules of Civil Procedure require full and prompt disclosure of all facts and information among parties to a lawsuit.

§ 1.5

THE METHODS OF DISCOVERY

Rule 26(a) specifies only five methods of discovery and they are as follows: • deposition upon oral examination or written questions; 1–4

INTRODUCTION TO RI DISCOVERY PRACTICE

§ 1.5

• written interrogatories; • production of documents, things, permission, or permission to enter upon land or other property under Rules 34 or 45(a) for inspection and other purposes; • physical and mental examinations; and • requests for admission. When used correctly, the first four of these methods will permit counsel to discover facts, and even admissible evidence, on all aspects of the adverse party’s case. Although the purpose of requests for admission is not necessarily to obtain information, they are extremely useful in narrowing the issues and thus help achieve a speedy and more inexpensive determination of the action based on its merits. 4A Moore, Federal Practice ¶ 36.02, at 36-12 (1984). Each method of discovery is discussed at greater length elsewhere in this volume.

§ 1.6

NECESSITY FOR PROFESSIONALISM AND CIVILITY

As pointed out by Justice Licht, in the quotation appearing in § 1.1, above, the extent to which the rules succeed depends on the cooperative action by the bench and the bar. Critical to cooperative action is civility. Civility is professionalism, particularly in regard to discovery. Discovery should only be used for its intended purposes and not for any other purposes. It should never be used to harass the other party or opposing counsel. Civility also requires that counsel make a good faith effort to respond in a reasonable and timely manner to requests for discovery. If for some reason counsel is unable to do so, then counsel should make a timely request for an enlargement of time in which to respond, first to opposing counsel and then to the court if counsel cannot agree. Ethics Commentary As noted in paragraph 1 of the comments to Rule 3.4 of the Rhode Island Rules of Professional Conduct, “the procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.” See Langley v.

1–5

§ 1.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Providence College, No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009), where a justice of the Superior Court addressed the “pattern of concealment, evasion, and obstruction evidenced by Providence College’s discovery responses and representations made to the courts of this State.” In her decision, the justice cited Hickman v. Taylor, 329 U.S. 495, 505 (1947), reaffirming that “It is during the discovery process that all parties are expected to disgorge the information requested of them, fully, candidly and expeditiously.” The decision in the Langley matter is more fully referenced in Chapter 22 herein and contains additional cautionary language for the practicing attorney. One would be well advised to avoid the missteps made by counsel in the Langley matter.

Frequently judges will state from the bench that discovery should be selfexecuting. Truly, counsel should be able to resolve most discovery questions without the aid of the court. Indeed, Rule 37(a)(2) specifically requires a certification in discovery motions that counsel in good faith have “conferred or attempted to confer” with the party failing to make discovery in an effort to secure information or material “without the aid of the court.” Only then will the court take cognizance of the matter. Counsel should remember that a judge’s time is not well spent adjudicating routine discovery matters. Ethics Commentary Rule 4.4(b) of the Rhode Island Rules of Professional Conduct clarifies a lawyer’s responsibility when the lawyer receives a document relating to the representation of a client that the lawyer knows he or she was not intended to receive. Simply stated, the rule requires that the receiving lawyer notify the sending lawyer that the document was received.

Civility and professionalism require counsel to be reasonable and sensible both in requesting discovery and responding to requests for it. Of course, from time to time issues may arise that are beyond the ability of counsel to resolve. In those infrequent situations, the court must resolve the dispute. See Crowe v. Countryside Realty Assocs., LLC v. Novare Eng’rs, Inc., 891 A.2d 838 (R.I. 2006); see also Henderson v. Newport County Reg’l YMCA, 966 A.2d 1242 (R.I. 2009). Civility constitutes good manners as well as consideration for the court and the other party. Offensive language or intemperate remarks, written or oral, cannot

1–6

INTRODUCTION TO RI DISCOVERY PRACTICE

be tolerated and are a mark of a lamentable lack of professionalism. See Clark v. Morsilli, 723 A.2d 494 (R.I. 2004).

§ 1.7

RHODE ISLAND’S MOTION PRACTICE

Since the advent of modern discovery and the adoption of the current Rules of Civil Procedure governing discovery, motion practice in Rhode Island has continued to evolve. In general, the contentiousness engendered by an historic lack of open discovery and concomitant gamesmanship has ebbed and most competent practitioners accept the need for full and candid disclosure of information. As a result, the size of the motion calendar dockets have dropped in the last twenty years notwithstanding that the number of annual filings for civil actions has increased substantially and many discovery issues have become more complex. The rules contain provisions that encourage efficient disposition of many motions. For example, Super. R. Civ. P. 7(b)(3) allows for a number of discovery and other motions to be granted as a matter of law. These motions are known as rule-of-court motions for the reason that they are deemed granted pursuant to Rule 7(b)(3) unless the opposing party files a written objection to the motion at least three days before the motion is scheduled to be heard. If no objection is filed, the law treats the motion as if granted and the motion is not scheduled for hearing. Rule-of-court motions are the following: • a motion to assign, which shall indicate the calendar to which assignment is desired; • a motion to consolidate cases for trial; • a motion to enlarge time for permitting an action to be done under Rule 6(b)(2) after the expiration of the specified time period; • a motion for leave to file a third-party complaint under Rule 14; • a motion to amend pleadings under Rule 15; • a motion for an order for physical or mental examination under Rule 35; and • a motion under Rule 26 or 37 to obtain a protective order or to compel discovery. (Motions to compel discovery or more responsive answers must specify the date for compliance.)

1–7

§ 1.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Although rule-of-court motions facilitate the routine, they are limited in their scope and every practitioner must take care in avoiding exceeding the intended scope of Rule 7(b)(3) motions. For example, a motion to assign to the trial calendar is a rule-of-court motion but including a request for priority assignment in such a motion takes the motion beyond the scope of the Rule. Other examples include the following: • requests for protective orders that allow the parties to designate some or all of the court files and records to be sealed; • any motion that includes a request for in camera review by the court; • motions to extend time for service of process under Rule 4 and motions for alternate service of process; and • motions that include requests for attorney fees, costs, or sanctions pursuant to Rule 26 or 37. Just as importantly, rule-of-court motions that exceed the intent and scope of the Rule will be of no assistance to the practitioner. For example, a motion purporting to compel discovery in the form of a nonparty’s appearance at a deposition will have no legal effect because the nonparty is not subject to the court’s jurisdiction in that case. Therefore, practitioners should take care when they draft their motions, keeping in mind that, when filed, the motion may be docketed by a less experienced clerk who might process and docket the motion as a rule-ofcourt motion when it should be treated otherwise due to the relief sought. In those instances, the practitioner is left with a meaningless docket entry indicating the motion was granted by rule of court. Therefore, practitioners must be careful not to include rule-of-court notice language in their motion if, substantively, the motion does not qualify under Rule 7(b)(3). For motions the title of which sound similarly to a Rule 7(b)(3) motion, it is recommended that practitioners include a short statement above the case caption to the effect, “Hearing date: July 1, 20XX. This is NOT a rule-of-court motion.” Practitioners also should be alert to the fact that sometimes a timely sent objection will become waylaid or misplaced and the motion will be processed by the court as having been granted by rule of court. Although in theory, it should not be necessary to do this, in such cases, it may be prudent for the practitioner to motion the court to formally vacate the rule of court entry appearing in the docket. For motions that have been duly granted pursuant to Rule 7(b)(3), some practitioners will take the precaution of preparing and submitting a written order reflecting the fact that the motion was granted by rule of court even though this is not technically necessary. 1–8

INTRODUCTION TO RI DISCOVERY PRACTICE

§ 1.7

In addition, if the discovery process breaks down for any reason, the discovery rules provide the mechanism permitting the court to apply a wide variety of sanctions for failure to make discovery. The court has at its disposal, and can use at its discretion, a smorgasbord of sanctions against the offending party ranging from a mere order to make discovery to ordering default on liability and dismissal of claims, and preclusion orders. As Professor Kent pointed out when discussing Super. R. Civ. P. 37 in particular, the administration of the rule seeks to put “teeth in the rules sharp enough to induce compliance without substantially detracting from the basic principal of deciding cases on the merits and not” as punishment for offenses against procedural rules. Kent, Rhode Island Rules of Civil and Appellate Procedure with Commentaries, volume I, 37:1. Ethics Commentary There are many reasons for not responding promptly to discovery requests propounded by the other side. Not all of them are good reasons. Rule 1.3 of the Rhode Island Rules of Professional Conduct simply states that “A lawyer shall act with reasonable diligence and promptness in representing a client.” There are occasions when, subsequent to initiating a legal action on behalf of a client and in the midst of discovery, an attorney loses faith in the viability or profitability of the client’s legal matter and stops pursuing the client’s objectives. Rather than suffer the consequences of failing to proceed diligently on behalf of the client and failing to maintain adequate communication with the client, the attorney should discuss his or her misgivings with the client and, if appropriate, file a motion to withdraw from the representation pursuant to R. Prof. C. 1.16(b)(7) rather than putting the client’s matter on the “bottom shelf.”

As a rule, courts will exercise discretion in allowing offending parties to make discovery before finding them contumacious and applying sanctions other than simple compulsion orders. However, when merited, the courts will impose sanctions that have terminated litigation without reaching the merits. Therefore, prudent counsel would do well to remember that voluntary compliance with the Rules of Civil Procedure is one indicator of professional competence. Counsel who obstruct or obfuscate discovery or who revert to gamesmanship place their clients at risk of default or dismissal. See Goulet v. Office Max, Inc., 843 A.2d 499 (R.I. 2004) (complaint dismissed for failure to make discovery); Mumford v. Lewiss, 681 A.2d 914 (R.I. 1996) (dismissal for failure to make discovery is within the discretion of the court); Flanagan v. Blair, 882 A.2d 569 (R.I. 2005) (failure to comply with a court order in a timely manner was “defiance” on part of the plaintiff).

1–9

§ 1.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Oddly enough, the use of consent orders by way of which parties to a lawsuit will be conditionally defaulted or their claims conditionally dismissed has evolved as an integral part of Rhode Island’s modern discovery practice. Although many practitioners fairly complain that the practice encourages more discovery delays than it cures, the use of “conditional” orders, so-called, seemingly reflects the bar’s understanding of the need for and acquiescence in a sanction-based framework where there has been a failure to respond to discovery requests. Somewhat contrarily but not altogether so, the use of conditional orders also can be viewed as a reflection of civility and cooperation among counsel. What better way to advance one’s client’s right to discovery responses while affording some measure of latitude to opposing counsel than to agree to a default or dismissal that may be vacated upon compliance with the discovery request within a reasonable time period? What better way to respond to a legitimate complaint about discovery delays than to accede to a default or dismissal, relief from which will be conditioned upon prompt compliance with the discovery request?

§ 1.8

CONCLUSION

This publication embodies and presents a unique blend of perspective, law, and local practice.

1–10

CHAPTER 2

Analyzing Discovery and Investigation Issues Jessica L. Papazian-Ross § 2.1

Introduction .......................................................................... 2–1

§ 2.2

Investigation of the Claim.................................................... 2–2 § 2.2.1

Individual Client.................................................... 2–3 (a)

Relevant Facts and Witnesses....................... 2–3

(b)

Relevant Documents .................................... 2–4

§ 2.2.2

Corporate Client .................................................... 2–6

§ 2.2.3

Budgetary Constraints........................................... 2–7 (a)

Affidavits...................................................... 2–7

(b)

Expert Witnesses .......................................... 2–9

(c)

Depositions ................................................ 2–10

§ 2.2.4

Legal Fees ............................................................2–11

§ 2.2.5

Statutes to Consider When Investigating a Claim and Considering Legal Options ............. 2–12

§ 2.2.6

(a)

Statute of Limitations................................. 2–12

(b)

Notice Statutes ........................................... 2–12

(c)

Acceleration Statutes.................................. 2–13

Standards for Professional Conduct Within the Rhode Island Judicial System ....................... 2–14 (a)

Lawyers’ Obligations to Clients................. 2–14

(b)

Lawyers’ Obligations to Opposing Parties and Their Counsel .......................... 2–15

2–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 2.3

2–ii

Rhode Island Superior Court Rules of Civil Procedure ...............................................................2–16 § 2.3.1

Rule 26—General Provisions Governing Discovery; Duty of Disclosure.............................2–16

§ 2.3.2

Rule 27—Depositions Before Action or Pending Appeal................................................2–19

§ 2.3.3

Rule 28—Persons Before Whom Depositions May Be Taken ......................................................2–20 (a)

Within Rhode Island ...................................2–20

(b)

Outside Rhode Island..................................2–20

§ 2.3.4

Rule 29—Stipulations Regarding the Taking of Depositions ......................................................2–20

§ 2.3.5

Rule 30—Depositions Upon Oral Examination .........................................................2–21

§ 2.3.6

Rule 31—Depositions Upon Written Questions .............................................................2–24

§ 2.3.7

Rule 32—Use of Depositions in Court Proceedings ..........................................................2–25

§ 2.3.8

Rule 33—Interrogatories to Parties......................2–26

§ 2.3.9

Rule 34—Production of Documents and Things and Entry Upon Land for Inspection for Other Purposes ........................2–27

§ 2.3.10

Rule 35—Physical and Mental Examination of Persons.............................................................2–28

§ 2.3.11

Rule 36—Requests for Admission.......................2–29

§ 2.3.12

Rule 37—Failure to Make or Cooperate in Discovery: Sanctions .......................................2–30

§ 2.3.13

Rule 45—Subpoena .............................................2–32

CHAPTER 2

Analyzing Discovery and Investigation Issues Jessica L. Papazian-Ross

Scope Note This chapter will address the investigations an attorney should undertake before deciding to handle a matter on behalf of a client, how researching the legal issues surrounding your claim is just as important as researching the factual issues regarding what occurred and how the value of your case might influence the discovery that you undertake in the case. This chapter summarizes the applicable Superior Court Rules of Civil Procedure that are used in discovery to gather information on behalf of your client. Helpful rules and statutes to aid in the investigation of your case will be mentioned and highlighted throughout this chapter. Other chapters in this book will provide a more detailed analysis of applicable discovery rules and will explore evidentiary issues which civil litigants will confront in their daily practice.

§ 2.1

INTRODUCTION

The state constitution guarantees the following right to justice for all persons: Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one’s person, property, or character. Every person ought to obtain right and justice freely, and without purchase, completely and without denial; promptly and without delay; conformably to the laws. R.I. Const. art. 1, § 5. In order to obtain a remedy for a wrong suffered, whether a contract claim, tort claim, or equitable claim, a practitioner needs to investigate the facts surrounding 2–1

§ 2.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

the claim, determine the causes of action and multiple theories upon which relief may be granted, and research the elements needed to prove your case. At the very beginning of evaluating your claim, you should determine the most effective avenue to achieve a resolution for your client. The choices to consider are mediation, arbitration or litigation.

§ 2.2

INVESTIGATION OF THE CLAIM

When a prospective client contacts you regarding a legal dispute, you must assess the merits of the claim, the value of the claim, whether the witnesses needed to prove your claim are available, whether documentary evidence exists or is available, and the extent to which an expert witness may be required to prove your case. In the investigation stages, you also need to consider what legal defenses might be raised to your claim and how you will counter those anticipated defenses. Once you elicit all the necessary facts from your client regarding what happened, the first assessment you have to make as an attorney is whether the facts constitute a cause of action under Rhode Island law, and, if so, the elements that you need to prove to establish your claim. You should research the case law regarding the legal theories of your claim, the applicable statutes and any defenses to your claim. At the outset of investigating the claim, you should start gathering the case law you would need to prepare jury instructions and/or a pretrial memorandum in a nonjury case. Knowing the law and the legal issues surrounding your claim will enable you to target the discovery you need to prove your case. In order to use discovery effectively, you need to know what information you are trying to elicit through discovery, what you need to prove, what defenses you need to rebut, and only through a thorough, initial investigation of the claim and the applicable case law can you effectively use the Rules of Civil Procedure to obtain the discovery that you need to prosecute and/or defend a civil action. An attorney representing a client who has been sued should go through a similar analysis in analyzing the facts surrounding the plaintiff’s claim, researching the case law as to the theories alleged, determining the defenses to the claim, and focusing discovery on establishing the elements needed to prove the defenses asserted to plaintiff’s complaint. Thus, you will undertake a witness analysis, document analysis and research analysis.

2–2

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.2.1 (a)

§ 2.2

Individual Client Relevant Facts and Witnesses

When a client is an individual versus a corporation, you should take a complete history from the client regarding work history, any prior lawsuits, and any criminal record and you should question the client’s story as if conducting a mini cross-examination. You need to assess the strengths and weaknesses of your case to determine the best avenue to pursue on behalf of your client to recover, whether it is litigation or through alternate dispute resolution. If the investigative process reveals that the witnesses or evidence supporting your client’s case are weak, located out of state, or inaccessible without significant cost, these factors may influence your strategy in pursuing the case. In those types of cases, trying to resolve the case through mediation and/or private arbitration might be the best approach. The time to talk to your client’s witnesses is not after you have filed a lawsuit or after the witness has been subpoenaed by the other side for a deposition. Before you file suit, you should know what the witnesses who support your client’s position, and/or who are under your client’s control, have to say about what occurred, whether the underlying case is a motor vehicle accident, contract dispute, or medical malpractice action. It is best to meet a witness in person to assess his or her credibility and how he or she comes across as a witness. When you meet with a witness, always obtain a mailing address for the witness, a telephone number, a cell phone number, and an e-mail address, if applicable. You need as much information as possible because even though you advise a witness when you meet them to notify you if they move or change address, typically a witness is not thinking about you when they relocate, and no matter how good a witness might be on behalf of your client, if you lose touch with a critical witness, you may need to reevaluate your trial strategy. In the appropriate case, you may want to depose a critical witness to preserve his or her testimony for trial. The loss of a witness can totally change the dynamics of your case. You should also be up front with witnesses, and let them know that once a lawsuit is commenced and your client is served with interrogatories, if an appropriate question is asked about witnesses, the individual’s name and address will be revealed in the interrogatory answer. Once this information is revealed, the opposing side might try to contact the witness. The witness should also be advised that he or she is under no obligation to speak with the opposing party, his or her attorney, or any investigator hired by the opposing party relative to the dispute.

2–3

§ 2.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The witness should be informed, however, that he or she may be contacted by opposing counsel unless there is a reason that prevents opposing counsel from contacting the witness. Prohibitions that could prevent opposing counsel from contacting the witness might include things such as a preexisting attorney-client privilege and/or a statute prohibiting such ex parte communications with a witness, such as under the Health Care Communications and Information Act, R.I. Gen. Laws § 5-37.3-4(b)(8)(ii) (2004 Reenactment). For privileges that might apply in the corporate context, see Upjohn Co. v. United States, 449 U.S. 383 (1981). See also Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009). You should also advise a witness up front that the witness may be asked to attend a court-annexed arbitration hearing which may or may not resolve the dispute, and the witness may also be asked to attend the trial. You should determine when you first meet with the witness whether the witness is willing to attend such proceedings if asked. If a witness only wants to talk with you privately but does not want to commit to attending any court proceeding or hearing, then that is an important consideration for an attorney to be aware of in analyzing and determining strategies for your case.

(b)

Relevant Documents

After you have spoken with your client regarding the legal dispute, you should start gathering documents to support your claim. If the case involves a motor vehicle accident, you should contact the relevant police department to obtain a copy of the police report. If your client was injured, you should obtain a copy of the ambulance report and a copy of all of the medical records from any health care provider who treated your client. If your client is pursuing a personal injury claim, you should obtain a copy of the employee’s personnel file if your client was employed at the time of the accident. Personnel files are governed by R.I. Gen. Laws § 28-6.4-1 (2003 Reenactment). Under this statute, an employee, upon written notice to the employer, is entitled to inspect his or her personnel file, and upon paying reasonable copying costs can obtain a copy of his or her personnel file. In a case where a client is claiming lost wages, it is important that you obtain a copy of your client’s personnel file as the other side will most likely seek such information in a request for production and/or in a keeper or records deposition from the employer. Generally, when a personnel file is requested, confidential and/or privileged information, which might include the employee’s social security 2–4

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.2

number, W-2 tax forms, may be the subject of a protective order should this information be sought in discovery. Under R.I. Gen. Laws § 28-6.4-2 (2003 Reenactment), an employer may be subject to a fine if he or she releases such information to third parties without the consent of the employee and/or without a court order. Even if a party is not asserting a claim for lost wages, documents pertaining to the employee’s work history, including hours worked, can be discovered as such information may be relevant as to the extent of the injuries claimed from the accident. Practice Note For example, if a party claims he or she was severely injured from an automobile accident and continues to work forty hours a week and even works overtime while claiming to have a neck and/or back injury that is disabling, then work records from the employer are clearly relevant to refute the injured person’s damage claim and/or disability resulting from the injuries. The Rhode Island Supreme Court has stated that such information is relevant and discoverable even when a plaintiff is not claiming lost wages and/or loss of earning capacity. See Fremming v. Tansey, 626 A.2d 219 (R.I. 1993).

In addition to obtaining a client’s personnel file to determine what is in the file, both positive and negative, you should obtain all business records relative to the legal dispute. Once litigation has commenced, you should issue a keeper of records deposition to subpoena whatever business records that you need and/or that your client does not have in his or her its possession, custody or control. In personal injury cases, the client should sign medical authorizations to obtain all medical records (bills, notes, x-rays, diagnostic test results) for treatment rendered from all health care providers including medical records that preexisted the incident or accident for same or similar injuries. You should also obtain medical records from an internist and/or family doctor who treated your client for a period of at least five years prior to the subject incident or accident. Practice Note When trying to obtain copies of medical records, if the health care provider indicates that it will cost $100.00 or a flat fee to obtain the medical records, advise the health care provider of the statute governing a patient’s right to obtain copies of his or her medical records under the regulatory fees established by the Board of Medical Licensure and Discipline. Under Section 11.2, the charge is $.25 cents per page for the first 100 pages and a maximum retrieval fee of $15.00.

If the matter is a contract dispute, you should obtain all business records relative to the contract and the work that was performed. You should obtain all copies of 2–5

§ 2.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

the contract, including all prior versions. You should also obtain all electronically stored data, disks, files, e-mail correspondence, charts, graphs, or any other documents involving the claim that is stored on your client’s computer system. Your client must be advised not to delete or destroy any files and to maintain proper document retention and backup disks relative to the dispute. The document retention applies no matter what the cause of action is, whether it is a contract claim, a tort claim or an equitable claim. The intentional or negligent destruction of relevant evidence that is unfavorable to your party’s position may result in a spoliation defense being asserted in the case. For cases discussing the doctrine of spoliation, see Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744 (R.I. 2000); Mead v. Papa Razzi Restaurant, 840 A.2d 1103 (R.I. 2004); McAdam v. Grzelczyk, 911 A.2d 255 (R.I. 2006). Before a lawsuit is filed, due diligence should be performed to obtain all relevant documents, relevant evidence should be photographed, witnesses should be interviewed, the scene of the incident should be viewed, and you should understand the strengths and weaknesses of your case. Only through investigation can you be the best advocate for your client in presenting the case, preparing the necessary discovery and confronting any challenges that may arise.

§ 2.2.2

Corporate Client

When your client is a domestic corporation—that is, a corporation registered in Rhode Island and authorized by the secretary of state’s office to conduct business—you should verify that your client has properly maintained its corporate capacity so there is no individual liability for acts or conduct undertaken by the corporation. Has the corporation signed contracts in its corporate capacity and not in an individual capacity by an officer and/or shareholder of the corporation? You should verify that your corporate client has filed its annual report with the secretary of state’s office, has maintained a registered agent with the secretary of state’s office, has maintained corporate books and records, and has not intertwined personal property and accounts with business property and accounts. Make sure that the corporate officers are shielded from personal liability relative to contracts and transactions undertaken by the corporation. The domestic corporation needs to always be in good standing with the secretary of state’s office. As for discovering facts of an underlying dispute, you should employ the same due diligence for a corporate client that you would with an individual client as to questioning witnesses and obtaining documentary evidence regarding the claim or dispute. If your client is a foreign corporation, you should verify whether your client conducts sufficient business in Rhode Island to warrant a certificate of authority to be issued by the secretary of state’s office as required under R.I. Gen. Laws 2–6

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.2

§ 7-1.2-1401. Note that R.I. Gen. Laws § 7-1.2-1401(b) exempts certain activities from constituting transacting business in this state, such as effecting sales through independent contractors and/or an isolated transaction completed within thirty days. If your client is a foreign corporation, you should determine the extent of its business activities in Rhode Island and whether any exemption from obtaining a certificate of authority might apply. If you represent a foreign corporation that is not authorized to transact business in Rhode Island and is required to do so, R.I. Gen. Laws § 7-1.2-1418 prohibits a foreign corporation from maintaining a lawsuit or proceeding in Rhode Island until the corporation has obtained a certificate of authority. The failure of a foreign corporation to obtain a certificate of authority to transact business in the State of Rhode Island does not prevent the foreign corporation from defending a lawsuit in Rhode Island. It only prevents the foreign corporation from prosecuting and/or initiating a lawsuit in Rhode Island. Practice Note A corporation has to be represented by an attorney and cannot be represented by an officer of the corporation. A president of a corporation cannot answer a complaint or file any legal pleading on behalf of the corporation. See Plantations Legal Defense Servs., Inc. v. Grande, 121 R.I. 875, 403 A.2d 1084, 1085 (1979).

§ 2.2.3 (a)

Budgetary Constraints Affidavits

While each client deserves to have thorough and diligent legal counsel, the extent of your investigation of the claim may be limited by financial costs and the amount of your claim. At the beginning of your case, you should determine whether you need an expert witness to prove your claim, the cost of the expert witness, and the ability of your client to pay for such services. You should consider whether the evidence can be introduced at trial by way of an affidavit if the claim involves a personal injury. Under R.I. Gen. Laws § 9-19-27 (1997 Reenactment), medical records and bills can be introduced into evidence by an affidavit signed by the medical provider subject to relevancy and other objections under Rule 403 of the rules of evidence. For case law governing some of the evidentiary issues and hurdles in utilizing medical affidavits, a review of the following cases would be useful: See Parrillo v. F.W. Woolworth, 518 A.2d 354 (R.I. 1986); Cuddy v. Schiavonne, 568 A.2d 1387 (R.I. 1990); Franco v. Kaufman & Broad, Inc., 571 A.2d 24 (R.I. 1990); Ouellette v. Carde, 612 A.2d 687 (R.I. 1992); Martinez v. Kurdziel, 612 A.2d 669 (R.I. 1992); Boscia v. Sharples,

2–7

§ 2.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

860 A.2d 674 (R.I. 2004); Picard v. Barry Pontiac-Buick, Inc., 654 A.2d 690 (R.I. 1995). If your client sustained property damage to a motor vehicle or other form of personal property, Section 9-19-28 of the General Laws allows a party to present an affidavit from a qualified person whether a licensed appraiser, repairman or contractor, whichever witness is qualified to render an opinion as to the repair or replacement cost for the property damage sustained. Once you prepare the affidavit under Sections 9-19-27 or 9-19-28 of the General Laws, you have to certify the affidavit to your opponent at least ten days’ prior to the affidavit’s being introduced into evidence. A signed delivery receipt is required. If your opponent has an objection to the qualifications, substance or admissibility of the medical affidavit under Section 9-19-27 of the General Laws, your opponent is required to raise those objections within ten days of receipt of the affidavit or such objections are waived. If a party has presented an expert witness’s opinion by use of medical affidavit, the opposing side can challenge the opinion set forth in the affidavit by deposing the medical expert. The opposing side has one hour to depose the medical expert, and any testimony beyond the one hour has to be paid for by the adverse party. The one-hour rule was decided by the Rhode Island Supreme Court in the case of Gerstein v. Scotti, 626 A.2d 236 (R.I. 1993), which pertained to the medical affidavit statute contained in R.I. Gen. Laws § 9-19-27. Practice Note If you have an objection to a medical affidavit, you must raise the objections within ten days of receipt of the affidavit and/or your objections will be waived. If your objection to the affidavit is that the witness who signed the affidavit was not competent to sign the document, that the procedural requirements of the statute were not met, or pertains to causation, relevance, or foundational issues, you may present those issues to the motion calendar for consideration, who may either rule on the objections in whole or in part or may defer the issues to the trial justice for consideration. If you cannot obtain a preliminary ruling on the objections to the affidavit, as a backup, the expert witness should be disclosed in your answers to interrogatories. The best practice is to identify the expert as a potential witness in the interrogatory answers, seek to introduce the opinion at trial by way of the affidavit and have the witness on standby if the affidavit gets excluded in whole and/or in part at the time of trial. If the evidence can be introduced by way of an affidavit, it is definitely more cost-effective than to pay for an expert witness’ time in preparing and attending the trial.

2–8

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.2

If you have a case where you cannot prove your claim without an expert witness and there are no circumstances under which an affidavit could be utilized, you need to discuss the costs and retention of an expert witness with your client before you bring suit. If your client cannot afford to hire an expert and/or if an expert cannot state an opinion that supports the theories you need to establish, then a lawsuit might not be the best avenue to pursue on behalf of your client. Filing a lawsuit that later gets dismissed because you cannot prove your claim can be costly to you and your client.

(b)

Expert Witnesses

If your case is one where an expert witness is required to prove your claim, the cost of conducting discovery will be much more expensive than a case involving only lay witnesses. After an expert witness is disclosed in discovery, expert depositions will usually be taken. Under Super. R. Civ. P. 26, when an expert witness is deposed, the person deposing the expert witness must pay the reasonable time spent attending the deposition and the reasonable expenses incurred in attending the deposition of the expert witness. There is a provision under Rule 26 to ask for costs and expenses regarding expert depositions. The time an expert witness spends in preparing for a deposition does not appear to be a chargeable expense. Compare the language in Fed. R. Civ. P. 26 and Rule 26 of the Superior Court Rules of Civil Procedure. Federal Rule 26(b)(4)(C) requires that an expert be paid the reasonable fee for “time spent” in responding to discovery under Fed. R. Civ. P. 26(b)(4)(A) or (B). Unlike Fed. R. Civ. P. 26, Super. R. Civ. P. 26(b)(4)(A) states in part that a party seeking to depose an expert “shall pay the expert the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition.” Under the case law construing Fed. R. Civ. P. 26, there is a split among jurisdictions as to whether the court will award the expert his or her costs in preparing for a deposition under the language that says, “time spent in responding to discovery” under Fed. R. Civ. P. 26(b)(4)(A). While not an exhaustive list, the cases supporting that preparation time is recoverable are the following: Mannarino v. United States, 218 F.R.D. 372 (E.D.N.Y. 2003); Mock v. Johnson, 218 F.R.D. 680 (D. Haw. 2003); George v. Eaton, M.D., 789 S.W.2d 56 (Mo. App. W.D. 1990). Several courts have stated under the federal rule that preparation time should not be included as part of the expert’s fee unless the matter involved complex litigation and/or there were other compelling circumstances. See M.T. McBrian, Inc. v. Liebert Corp., 173 F.R.D. 491 (N.D. Ill. 1997); Rhee v. WITCO Chem. Corp., 126 F.R.D. 45 (N.D. Ill. 1989); Another Step Forward v. State Farm Mut. Auto. Ins. Co., 2007 WL 4357726 (E.D. Mich.). While you may be 2–9

§ 2.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

able to argue to the court that preparation time is included under Fed. R. Civ. P. 26 based on the language that allows for an expert fee for “time spent in responding to discovery,” no such parallel language exists under Super. R. Civ. P. 26. Rule 26(b)(4)(A) allows a party to recover a reasonable fee for the expert relative to “time spent in attending the deposition.” Thus, preparation time is arguably not included under Super. R. Civ. P. 26. Generally, a party will not have to pay for the expert witness’ preparation time, that is, the time spent between the expert and his or her counsel in preparing for the deposition. However, if the expert witness has to travel from California to come to Rhode Island and needs to stay overnight as a result of the deposition, you may be responsible to pay for those costs. Pursuant to Rule 26, it remains within the discretion of the court to determine whether a particular set of circumstances might justify a departure from the general rule.

(c)

Depositions

If you are a plaintiff and wish to depose defendant’s expert witness who lives out of state, the expert witness does not have to travel to Rhode Island for the deposition. Defendants in a litigation, as well as their expert witness, are subject to being deposed in the state where he or she resides. It is advisable to work out an agreement with opposing counsel and to present a stipulation to the court relative to the depositions of an expert witness. You might agree to have the opposing counsel make the witness available in the state where the expert resides. You might agree to the location selected by the witness for the deposition and that the witness will attend that deposition without the necessity of a subpoena being issued in the foreign state. You will need to arrange for a court reporter to be present for the out-of-state witness and the parties should stipulate that the deposition can be utilized in the Rhode Island case. Depending on how many expert depositions need to be conducted, and depending on where the expert is located, a videoconferencing deposition might be a cost-effective alternative. You can contact a court reporter in Rhode Island to determine videoconferencing capabilities, and the court reporter can advise you of the cost for such a deposition. When you have a videoconferencing deposition, the testimony is recorded by a stenographer, and there is a written transcript. The stenographer is present where the witness is located. Videoconferencing is not a videotaped deposition. In a videoconferencing deposition, you look through a television screen and can see the witness and they can see you, but the visual aid is not being recorded. You are able to observe the witness and assess credibility through facial expressions, hand motions, and mannerisms the same as you would as if the witness was sitting next to you in a deposition.

2–10

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.2.4

§ 2.2

Legal Fees

In discussing the anticipated costs and expenses with your client in pursuing litigation, the client may be under a mistaken belief that if he or she prevails at the time of trial, the court will award attorney fees. In cases involving a contractual dispute, if there is a provision in the contract allowing the nonbreaching party or prevailing party to recover attorney fees, the court in theory should honor the provision of the contract but in reality will exercise discretion in whether to award the attorney fees. If the contract provision uses a clear and unambiguous word like “shall,” then there is a strong argument that the court should not rewrite the contract but should enforce the provision as written and agreed to by the parties. If you have a contract dispute and there is no provision in the contract governing attorney fees, you can still pursue a claim for attorney fees under R.I. Gen. Laws § 9-1-45 (1997 Reenactment). This statute and basis for attorney fees should be pled in the complaint. Under R.I. Gen. Laws § 9-1-45, the standard for the court to award attorney fees, which is discretionary, is when the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party to the claims being asserted. Thus, if the plaintiff is entitled to a summary judgment or a directed verdict on its contract claim, the standard set forth in Section 9-1-45 has been satisfied. Section 9-1-45 also allows attorney fees to be awarded in a contract dispute when a default judgment has entered in the case. In mechanic’s lien cases, there is a statutory provision allowing the prevailing party to request attorney fees which is discretionary for the court to award. The proper method to seek a request for attorney fees is in a subsequent motion after the court has determined liability. See Keystone Elevator Co. v. Johnson & Wales Univ., 850 A.2d 912 (R.I. 2004). In cases involving discrimination, whether based on race, sex, sexual orientation, disability, age or some other protected category, under the State Fair Employment Practices Act, the prevailing plaintiff can pursue a claim for attorney fees and expert witness fees. The court will exercise its discretion to determine whether such fees are appropriate under the circumstances of the particular case. See R.I. Gen. Laws § 28-5-24 (2003 Reenactment).

2–11

§ 2.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 2.2.5

Statutes to Consider When Investigating a Claim and Considering Legal Options

There are numerous statutes that might apply to your client’s particular case depending on the type of claim, and this section merely highlights selected statutes governing notice provisions, statute of limitations and acceleration of claims.

(a)

Statute of Limitations

Depending on the claim that you have, the statute of limitations applicable to such claim may be contained in the statute governing the particular area of law and/or the statute of limitations may be contained in Title 9, Chapter 1 of the General Laws. The various statutes of limitations are too numerous to list in this chapter, but practitioners should be aware that the general enumeration for civil statutes of limitations is contained in R.I. Gen. Laws § 9-1-36. In this chapter, three particular statutes of limitations are being identified simply because a lot of the civil case filings involve these types of actions; the list is by no means exhaustive but merely highlights three particular statutes of limitations. In addition, practitioners should be aware that if a tort claim is being pursued against the state and/or any political subdivision of the state, the statute of limitations is three years, as governed by the provisions of R.I. Gen. Laws § 9-1-25. Certain causes of action survive the death of a party, and practitioners should review R.I. Gen. Laws § 9-1-6 as to those causes of action that survive. The three that are being highlighted for this chapter are the following: • under R.I. Gen. Laws § 9-1-14 (1997 Reenactment), a claim for personal injuries must be filed within three years of when the cause of action accrues; • under R.I. Gen. Laws § 9-1-14 (1997 Reenactment), a claim for defamation must be filed within one year after the defamatory words were spoken; and • under R.I. Gen. Laws § 9-1-13 (1997 Reenactment), a claim for breach of contract must be filed within ten years after the cause of action accrues.

(b)

Notice Statutes

There are also instances when notice is a prerequisite to a claim, such as may be contained in statutes, arbitration agreements, collective bargaining agreements, or by regulation. For example, if your client is injured on a city or town roadway, highway or sidewalk as a result of a defect, you must, within sixty days of 2–12

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.2

the incident, provide notice to the city or town of the time, place and cause of the injury as required by R.I. Gen. Laws § 45-15-9 (1999 Reenactment). If the city and/or town does not settle the dispute with your client, you must await the time period set forth in R.I. Gen. Laws § 45-15-5 before commencing a lawsuit. If your case involves a claim against a city or town, you must comply with R.I. Gen. Laws § 45-15-5 (1999 Reenactment) and submit your claim or demand to the town or city council as a prerequisite to filing a lawsuit. Forty days after the claim is submitted, a lawsuit can be filed if the town and/or city took no action to resolve your claim. If your client slipped and fell on ice and/or snow on a public highway, the city or town cannot be held liable unless it has had at least twenty-four hours’ prior notice of the snow or ice accumulation. Notice need not be given by the claimant and constructive notice may suffice depending on the circumstances. See R.I. Gen. Laws § 24-5-14 (1997 Reenactment). This section does not create an independent cause of action, nor does it impose strict liability on the city or town for its failure to remove accumulated snow and ice once on notice. The purpose of the statute is to provide the city or town with an opportunity to remove the obstruction before liability can attach. Hareld v. Napolitano, 615 A.2d 1015 (R.I. 1992).

(c)

Acceleration Statutes

Once a lawsuit is pending, you may want to accelerate the case on the trial calendar depending on your client’s age, the amount of the claim and/or the type of claim you are pursuing. Under R.I. Gen. Laws § 9-2-18 (1997 Reenactment), if a plaintiff or defendant is sixty-five years or older, you can accelerate the case on the trial calendar based on age. Under R.I. Gen. Laws § 9-2-20 (1997 Reenactment), if the civil action filed seeks wrongful death, personal injury or property damage and if the plaintiff can show that damages, once liability is established, are likely to be $100,000.00 or more, the case can be accelerated on the trial calendar. If your case involves a mechanic’s lien case, a mechanic’s lien complaint can be accelerated for trial pursuant to R.I. Gen. Laws § 9-2-18.1 (1997 Reenactment). In a mechanic’s lien action, the case cannot be assigned to the jury trial calendar. A mechanic’s lien action is an in rem proceeding, which is heard by the trial judge and is a nonjury proceeding in accordance with R.I. Gen. Laws § 34-2816.2 (1995 Reenactment).

2–13

§ 2.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 2.2.6

Standards for Professional Conduct Within the Rhode Island Judicial System

These standards are set forth in Appendix I to the Rules of Professional Conduct. These standards can be found in the current volume of the Matthew Bender & Co. publication, Rhode Island Court Rules Annotated, which is commonly referred to as the “green book.” The standards are not to be used as a basis for litigation, sanctions or penalties, but rather suggest acceptable conduct for an attorney in his or her practice. The hallmark that an attorney should aspire to achieve is integrity and professionalism at all times. The standards that are directly related to investigation and analyzing discovery are as follows:

(a)

Lawyers’ Obligations to Clients • I will treat my clients with courtesy and civility and conduct myself in a professional manner at all times. • I will keep my clients informed and involved in making the decisions that affect them. • I will communicate regularly with my client and will respond promptly and courteously to my client’s communications. • I will endeavor to achieve my client’s lawful objectives in business transactions and in litigation as expeditiously and economically as possible. • In appropriate cases, I will counsel my client with respect to mediation, arbitration and other alternative methods of resolving disputes. • I will advise my clients against pursuing litigation (or any other course of action) that is without merit and against insisting on tactics which are intended to delay resolution of the matter or to harass or drain the financial resources of the opposing party. • While I must abide by my client’s decision concerning the objectives of the representation, I nevertheless will counsel my client that a willingness to initiate or engage in settlement discussions is consistent with zealous and effective representation.

Rhode Island Court Rules Annotated, Appx. I, Standards for Professional Conduct within the Rhode Island Judicial System, 218–19 (2009).

2–14

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

(b)

§ 2.2

Lawyers’ Obligations to Opposing Parties and Their Counsel • I will practice my profession with a continuing awareness that my role is to advance the legitimate interests of my clients. In my dealing with others, I will not reflect the ill feelings of my clients. I will treat all other counsel, parties and witnesses in a civil and courteous manner, not only in court but also in all other written and oral communications. • I will not seek court sanctions without first conducting a reasonable investigation and unless fully justified by the circumstances and necessary to protect my client’s lawful interest. • I will not use any form of discovery or discovery scheduling as a means of harassment. • Whenever circumstances allow, I will make good faith efforts to resolve by agreement objections before presenting them to the court. • I will promptly notify other counsel and, if appropriate, the court or other persons when hearings, depositions, meetings, or conferences are to be cancelled or postponed. • I will take depositions only when actually needed. I will not take depositions for the purposes of harassment or other improper purpose. • I will not engage in any conduct during a deposition that would not be appropriate in the presence of a judge. • I will not obstruct questioning during a deposition or object to deposition questions unless permitted under applicable law. • I will carefully craft document production requests so they are limited to those documents that I reasonably believe are necessary and appropriate for the prosecution or defense of an action. I will not design production requests to place an undue burden or expense on a party, or for any other improper purpose. • I will carefully craft interrogatories so they are limited to those matters I reasonably believe are necessary and appropriate for the prosecution or defense of an action, and I will not design them to 2–15

§ 2.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

place an undue burden or expense on a party, or for any other improper purpose. • I will base my discovery objections on a good faith belief in their merit and will not object solely for the purpose of withholding or delaying the disclosure of relevant information, or for any other improper purpose. Rhode Island Court Rules Annotated, Appx. I, Standards for Professional Conduct within the Rhode Island Judicial System, 219–20 (2009).

§ 2.3

RHODE ISLAND SUPERIOR COURT RULES OF CIVIL PROCEDURE

The 2009 Rhode Island Court Rules Annotated contains the Superior Court Rules of Civil Procedure, which govern civil lawsuits in Rhode Island. The discovery rules for civil actions are contained in Rules 26–37 and Rule 45. These Rules govern pretrial discovery. Although discovery rules will be independently analyzed in other chapters in this book, selected rules will be highlighted in this chapter. This chapter will address the various discovery rules at your disposal to obtain the information that you need to investigate the facts of your particular case and to obtain the relevant documents that you need to either prove your case or to defeat a defense raised by the defendant.

§ 2.3.1

Rule 26—General Provisions Governing Discovery; Duty of Disclosure

The scope of discovery as set forth in Rule 26 is quite broad. A party may obtain discovery regarding “any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . . .” Super. R. Civ. P. 26(b)(1). When you propound discovery, the information you are seeking does not have to be admissible at the time of trial but has to be reasonably calculated to lead to the discovery of admissible evidence. Having performed due diligence and investigated your claim before pursuing discovery and having researched the applicable case law before conducting discovery, you will be in a much better position to know whether the information you are seeking in a discovery request is relevant to a claim or defense in the case and/or likely to lead to the discovery of admissible evidence.

2–16

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.3

If you are pursuing a claim where there is insurance coverage, you should seek information regarding the policy limits and obtain a copy of the declaration sheet of the insurance policy to determine the amount of coverage applicable to your claim. Super. R. Civ. P. 26(b)(2). You can also seek through discovery any reservation of rights letters issued by the insurance carrier and/or denial of coverage letters. Practice Note If an insurance carrier has denied coverage under its insurance policy for a claim you have asserted against the carrier’s insured, and there are no factual predicates that need to be established in the underlying lawsuit regarding the applicability of the policy exclusions, you may consider filing a declaratory judgment action pursuant to R.I. Gen. Laws § 9-30-9 and Super. R. Civ. P. 57 to resolve the coverage dispute. In a declaratory judgment action, the court will interpret the policy exclusions to determine if coverage is provided or excluded under the terms of the policy. If a third party lawsuit has not been pursued and the claim involves only the insured and the insurer, factual determinations can be decided in the declaratory judgment action. Issues of fact can be heard and decided by a jury. See R.I. Gen. Laws § 9-30-9. When there are no disputed factual issues, the parties will generally conduct limited discovery, as needed, and then will file cross-motions for summary judgment. You should review and be familiar with the provisions contained in the Uniform Declaratory Judgment Act, R.I. Gen. Laws § 9-30-1, et seq. (1997 Reenactment). When the coverage question can be decided as a matter of law, the court will proceed to decide the issue. See Allstate Ins. Co. v. Russo, 641 A.2d 1304 (R.I. 1994). In circumstances where a third-party lawsuit has been filed and the insurance carrier has denied coverage to its insured based on a policy exclusion, the underlying facts of how the incident happened may need to be adjudicated first before a declaratory judgment action can be pursued to challenge the denial of coverage. In such situations, where factual predicates need to be decided first to determine if coverage exists or is excluded, the factual issues need to be decided in the underlying lawsuit. A declaratory judgment action cannot be used to trump and/or take control of the factual determinations that will be decided in the third-party action wherein the named insured has been sued by a third party for the underlying incident and/or accident. See Employer’s Fire Ins. Co. v. Beals, 103 R.I. 623 (1968).

Rule 26 allows a party to seek discovery regarding any matter that is relevant to a claim or defense in the lawsuit as long as the subject matter is not privileged. 2–17

§ 2.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Information and documents can be withheld from discovery based on the attorney-client privilege and/or the work product doctrine. The attorney-client privilege safeguards and prohibits the disclosure of confidential communications between a client and his or her attorney for the purpose of seeking legal advice. However, all communications between a client and his or her attorney are not governed by the privilege. The communication must be directed to the attorney for the purpose of seeking professional advice. The privilege belongs to the client. See Callahan v. Nystedt, 641 A.2d 58, 61 (R.I. 1994). An unprivileged fact does not become privileged merely because a client communicated the fact to his or her attorney. Relevant facts are discoverable. See City of Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962); Samaritan Found. v. Goodfarb, 176 Ariz. 497, 862 P.2d 870, 874 (1993). A party cannot hide behind the attorney-client privilege if the underlying lawsuit puts the protected communication at issue in the case. If this occurs then the privilege has been implicitly waived by the filing of a lawsuit. See Mortgage Guar. & Title Co. v. Cunha, 745 A.2d 156, 159 (R.I. 2000) (citing Aranson v. Schroeder, 140 N.H. 359, 671 A.2d 1023, 1030 (1995)). The work product doctrine can be divided into two categories, opinion work product to which there is an absolute immunity and factual work product to which there is a qualified immunity. Factual work product can only be discovered if the party seeking the discovery can show a substantial need for the materials for preparation of his or her case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials through other means. Super. R. Civ. P. 26(b)(3). Practice Note What circumstances constitute undue hardship? Witness statements taken within close proximity of an incident occurring contain an immediate impression of facts that is hard to duplicate and the unique nature of such statements creates a special circumstance to justify undue hardship. See Fireman’s Fund Ins. Co. v. McAlpine, 120 R.I. 744, 391 A.2d 84, 91 (1978). If a party was unable to investigate an incident before evidence was discarded and/or destroyed, then a party may be able to obtain factual observations made by a party’s witness(es), consultant or even expert. The court may redact the conclusions rendered by an expert witness, but the factual data, photographs and observations made by the witness(es) and/or expert should be discoverable. When undue hardship has been established, based on the circumstances, investigative evidence regarding an incident that occurred will be discoverable. See Town of North Kingstown v. Ashley, 118 R.I. 505, 374 A.2d 1033, 1037 (R.I. 1977). In order to establish undue hardship, a party has to show that

2–18

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.3

the information cannot be obtained through other means and that indeed undue hardship would result if the information is not produced. If a party can hire their own investigator, examine the scene of the accident, question witnesses regarding what happened, then it is unlikely the undue hardship standard would be satisfied. See Henderson v. Newport County Reg’l Young Men’s Christian Ass’n, 966 A.2d 1242 (R.I. 2009).

Under Rule 26, once a party has responded to an expert answer to interrogatory, the expert can be deposed and questioned about his or her opinion. Super. R. Civ. P. 26(b)(4)(A). If you plan on deposing an expert witness, most likely you will have to pay the reasonable fee and expense of the expert for attending the deposition. Practice Note When you depose the expert witness, you should request that the expert bring his or her file to the deposition. You will want to examine the expert witness regarding all factual data that supports his or her opinion. If the expert wrote a report, you should seek the report and all drafts leading up to the final version. In the case of Crowe Countryside Realty Assocs. Co., LLC v. Novare Eng’rs, Inc., 891 A.2d 838 (R.I. 2006), the Rhode Island Supreme Court discussed whether through discovery, a party could obtain written communications between an attorney and an expert witness. In Crowe Countryside Realty Assocs. Co., LLC, the court distinguished between factual data provided to an expert witness in rendering his or her opinion and an attorney’s mental impressions, opinions and conclusions regarding the case, which was deemed core or opinion work product of an attorney and absolutely immune from discovery. Crowe Countryside Realty Assocs. Co., LLC v. Novare Eng’rs, 891 A.2d at 847. You can obtain the factual basis upon which an expert has rendered his or her opinion without satisfying the undue hardship standard, but a party cannot obtain opinion work product relied on by the expert witness in rendering his or her opinion. Crowe Countryside Realty Assocs. Co., LLC v. Novare Eng’rs, 891 A.2d at 847.

§ 2.3.2

Rule 27—Depositions Before Action or Pending Appeal

Before a lawsuit is filed, if a person wishes to perpetuate the testimony of any party and/or witness, the applicable rules are set forth in R.I. Gen. Laws §§ 918-12, 9-18-13, 9-18-14, and 9-18-15 (1997 Reenactment). Under these statutes,

2–19

§ 2.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

a person may present a petition to any judge of the Superior Court, Family Court, District Court, or Supreme Court setting forth the name of the witness the party seeks to depose, the subject matter, and the names of all persons known to have an interest. If the court allows a deposition notice to be issued, the notice should be sent to all interested persons. If there is a basis for the deposition not to go forward, the person objecting to the deposition should seek a protective order from the court. When an appeal is pending, the court may allow a deposition of a witness to be taken to perpetuate his or her testimony for use in the event of any further court proceedings. Super. R. Civ. P. 27(b).

§ 2.3.3

(a)

Rule 28—Persons Before Whom Depositions May Be Taken Within Rhode Island

Depositions taken in Rhode Island shall be before an officer authorized to administer oaths by law or before a person appointed by the court. Super. R. Civ. P. 28(a).

(b)

Outside Rhode Island

A deposition taken in a foreign state may be conducted before a person authorized to administer oaths in the state where the witness is being deposed or before a person authorized by a commission or by a letter rogatory to administer the oath and to take testimony of the witness at the deposition. The application should indicate either the name or a descriptive title of the person who will be administering the oath for the deposition. The opposing side is entitled to notice of the application and can raise any applicable objection to the issuance of the commission or a letter rogatory for the out of state deposition. Super. R. Civ. P. 28(b). For the taking of any deposition under this Rule, the person administering the oath shall not be related to any interested person or his or her legal counsel and such person shall not have any financial interest in the action. Super. R. Civ. P. 28(c).

§ 2.3.4

Rule 29—Stipulations Regarding the Taking of Depositions

The parties may stipulate in writing that depositions may be taken before any person at any time or place, upon any notice, and that such depositions may be utilized like any other deposition. Super. R. Civ. P. 29. 2–20

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.3

Practice Note The parties can stipulate to the procedures set forth in R.I. Gen. Laws §§ 9-18-5, 9-18-9, and 9-18-11 (1997 Reenactment) governing depositions taken in-state for use in another forum and out of state for use in Rhode Island. See also Super. R. Civ. P. 30(b)(7).

§ 2.3.5

Rule 30—Depositions Upon Oral Examination

A deposition can be taken of any person including a party. A plaintiff must wait until thirty days after service of process upon a defendant to notice a deposition unless the defendant has noticed a deposition in the case or has otherwise sought discovery. Super. R. Civ. P. 30(a)(2)(B). A deposition notice shall set forth the time and place for taking the deposition, the name and address of the person to be examined, and shall set forth the method upon which the testimony will be recorded. The method of recording may range from sound, sound and visual, or stenographic means. Super. R. Civ. P. 30(b)(1), (2). If you are requesting the deponent to produce documents at the deposition, if the person is a party to the case, you can simply attach a request for documents to the deposition notice. However, you must allow the party at least forty (40) days to produce the documents. You cannot circumvent the requirements of Rule 34 by sending a deposition notice and asking the deponent to bring documents to the deposition if the deposition is scheduled less than forty (40) days from the date the notice was certified. Super. R. Civ. P. 30(b)(5). If the deponent is a nonparty, you must issue a subpoena duces tecum to obtain records at the time of the deposition. Super. R. Civ. P. 30(a)(1). If you wish to take a deposition of a corporation or organization and do not know who has the most knowledge regarding the particular subject matter, you can notice the deposition of the person with the most knowledge and identify the subject matters upon which you will be questioning the witness(es) and you may ask the witness(es) to bring documents to the deposition. Super. R. Civ. P. 30(b)(6). When a 30(b)(6) deposition notice has been issued, the corporation and/or organization responding to the request is obligated to make a good faith effort to designate individuals who can respond to the topics and/or subject matter identified in the deposition notice, and these individuals must be able to provide knowledgeable, complete and binding answers on behalf of the corporation or organization. See U.S. v. Taylor, 166 F.R.D. 356, 360-61 (M.D. N.C. 1996); Prokosch v. Catalina Lightning, Inc., 193 F.R.D., 633, 638 (D. Minn. 2000); Calzaturficio S.C.A.R.P.A. S.P.A. v. Fabiano Shoe, 201 F.R.D. 33, 36-37 (D. Mass. 2001).

2–21

§ 2.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Practice Note When you receive a Rule 30(b)(6) deposition notice, you are required to prepare the witnesses who have knowledge regarding the subject matter so that he or she can fully respond to the deposition questions. If there are documents produced in discovery that the witness has to review to give a full and complete answer to the topic or subject matter identified, then the witness should review all relevant documents and should not appear at the deposition and respond evasively and/or indicate that some other person has more knowledge than he or she does if that other person has not been designated to appear for the deposition. Your obligation is to produce as many individuals as needed to respond to the topics identified whether that is two people appearing for the deposition or six people appearing for the deposition. Once you receive the deposition notice, you need to determine how many witnesses will be responding to the deposition notice. You must identify the person by name and indicate what topics and/or subject matter the witness will be testifying about at the deposition.

No one other than the parties to the action and legal counsel can attend the deposition without forty-eight hour notice given to all counsel in the case. Super. R. Civ. P. 30(c). Practical Note If your case involves a personal injury claim and you are deposing the driver of the other motor vehicle and the defendant’s counsel appears at the deposition with the insurance representative, even though you may not have been given forty-eight hour notice that the adjuster would be appearing at the deposition, you should probably not object. If you do well with cross-examination of the defendant operator and can establish liability, having the insurance adjuster evaluate your credentials as an attorney and the strengths and weaknesses of the case by observing how the defendant handles questions at a deposition might facilitate settlement of your case. Likewise, if an insurance representative appears at the deposition being taken of your client, the plaintiff in a lawsuit, you may not want to object as it might facilitate a settlement of your case. Your client’s credibility, and the emotional effect of how the accident and injuries impacted your client’s life, cannot be properly absorbed by reading a deposition transcript.

During a deposition, objections should be stated in both a nonargumentative manner and nonsuggestive manner and should be made when there is a form 2–22

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.3

objection and not when there is a substantive objection, as substantive objections are preserved for trial. Super. R. Civ. P. 30(d)(1). A person should only instruct a deponent not to answer a question when it is necessary to preserve a privilege, enforce a limitation on evidence as directed by the court, or to present a motion to the court as governed by Rule 30(d)(3). Practice Note Far too often during depositions, counsel objects to the question to tip off the witness or to disrupt the flow of the examination, both of which are improper purposes under the rules. It is clear under the case law that a deponent shall answer a question subject to the objection raised. Unless there is a privilege to protect, the question should be answered. During the deposition, counsel should refrain from dialogue on the record, coaching the witness, and gratuitous comments. If a party exceeds the bounds of acceptable conduct, the person should suspend the deposition and present a motion to the court if the person believes that the examination is being conducted in bad faith, or for an improper purpose such as to unreasonably annoy or embarrass the deponent or the party or the behavior of counsel is contrary to the guidelines set forth by the Rhode Island Supreme Court in the case of Kelvey v. Coughlin, 625 A.2d 775, 777 (R.I. 1993). See also Super. R. Civ. P. 30(d)(3).

The deponent, if he or she exercises the right, shall have thirty days after the transcript has been prepared by the court reporter to review the transcript for any mistakes and/or errors. The deponent must set forth the corrections to the transcript and the reason for the changes being made on the sheet provided by the court reporter. Super. R. Civ. P. 30(e). If the deposition consists of a technical or involved subject matter, whether or not the deponent is an expert witness, it may be advisable to have the witness read and sign the deposition transcript to make sure that the court reporter accurately transcribed what the deponent said at the deposition. In deciding whether to depose a defendant in the case, you should consider where the defendant resides as you cannot make a non-resident defendant travel to Rhode Island for a deposition. A defendant has the right to be deposed where he or she resides. See Ciunci v. Logan, 652 A.2d 961, 962 (R.I. 1995) (quoting 4 Moore’s Federal Practice, ¶ 26.22[1] at 26-367 (2d ed. 1994)). Therefore, when a defendant is a nonresident, you must determine the cost of traveling to the deponent and what testimony you need to elicit from the defendant that cannot be sought through other less expensive means such as interrogatories, requests for admissions, or requests for production.

2–23

§ 2.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

If you need to preserve the testimony of a witness who may be reluctant to attend the trial, too ill to attend the trial. or who may be located out of state and is beyond the subpoena power of Rhode Island, you may want to videotape his or her deposition. In your deposition notice, you need to indicate that the deposition will be videotaped. The admissibility of the videotaped deposition is a separate issue to be decided at the time of trial under the rules of evidence. The court, however, will liberally allow the videotaped deposition of a witness. See Coffey v. James H. McManus Shoppes of Am., Inc., 631 A.2d 833, 834 (R.I.1993).

§ 2.3.6

Rule 31—Depositions Upon Written Questions

This Rule, which is used in limited circumstances, allows a party to take the testimony of any person including a party by written questions to the person which are then answered under oath by the witness in front of a court reporter. Under this Rule, written questions are sent to the person and/or corporation who will be responding, as well as to counsel of record, and fourteen days after the written questions and notice are served a party may serve cross-questions upon all other parties. Within seven days after being served with cross-questions, a party may serve redirect questions upon all parties. Within seven days after being served with redirect questions, a party may serve recross questions upon all other parties. For cause shown, the court may enlarge or shorten the time period set forth under this Rule. Super. R. Civ. P. 31(a)(3), (4). Under this Rule, the written questions are delivered in a sealed envelope to the party taking the deposition who is then obligated to deliver and/or send the sealed envelope to the court reporter who will be present with the witness on the date and time scheduled for the deposition. The court reporter will then record verbatim the answers given by the person to the written questions. Super. R. Civ. P. 31(b); Super. R. Civ. P. 30(c). Practice Note The difficulty with using written questions for a deponent is that you cannot ask a follow-up question based on the answer given by the witness. The usefulness of this Rule for the taking of a deposition seems to be limited to circumstances where a deponent may be out of the country, a deponent may have medical or physical limitations that prevent him or her from attending and/or sitting through a deposition, or the deposition may involve a nonimportant witness on a narrow topic where costs may be a factor.

2–24

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.3.7

§ 2.3

Rule 32—Use of Depositions in Court Proceedings

A deposition can be used at trial to the same extent as if a witness were present and testifying, and the admissibility of such evidence is governed by the Rhode Island rules of evidence. Depositions are customarily used to impeach the testimony of the deponent. Super. R. Civ. P. 32(a)(1). A deposition of a witness, whether a party or not, may be used for any purpose if the court finds among other reasons that the witness is no longer living or is out of state, is beyond the subpoena power as long as the party introducing the deposition transcript did not facilitate the witness’ being unavailable, or that the witness is unable to attend because of age, sickness, infirmity, or imprisonment. Super. R. Civ. P. 32(a)(3)(A)(B)(C)(D). Upon notice and application to the court, if exceptional circumstances warrant it, the court may allow a deposition to be used at trial if the circumstances and the interests of justice so warrant. Super. R. Civ. P. 32(a)(3)(E). A videotaped deposition of a medical witness or an expert may be used at trial whether or not the witness is available to testify when the parties stipulate in writing or the court authorizes such use. Super. R. Civ. P. 32(a)(3)(E). If a party received less than eleven days’ notice of the taking of a deposition and such party promptly filed a motion for a protective order under Rule 26(c)(2) requesting that the deposition be held at a different time or place and such motion was not ruled on prior to the time the deposition was held, then the party can seek to exclude the deposition from being offered at trial. Super. R. Civ. P. 32(a)(3)(E). At the time of trial, if a party reads only a portion of the deposition transcript, the adverse party may request that other relevant parts be offered into evidence under the rule of completeness. Super. R. Civ. P. 32(a)(4). If a party seeks to offer nonstenographic deposition testimony at the time of trial, the party shall also, in advance of trial, provide the court and the other parties with the transcript of the portions being offered. Super. R. Civ. P. 32(d). In cases being tried before a jury, if the deposition testimony is being offered other than for impeachment purposes, it shall be presented in nonstenographic form unless the court for good cause orders otherwise. Thus, the deposition testimony will be read to the jury through a witness who takes the stand and reads the answers of the deponent after being asked the question from the attorney offering the particular deposition testimony into evidence. Super. R. Civ. P. 32(d).

2–25

§ 2.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 2.3.8

Rule 33—Interrogatories to Parties

Interrogatories may be served on any party in the case but cannot be served within the first sixty days after the defendant has been served with process without leave of court. Super. R. Civ. P. 33(a). Interrogatories must be answered separately. The numbered interrogatory must be set forth, followed by the answer to which it responds. The interrogatories must be signed under oath and responded to within forty days after service of the interrogatories. Super. R. Civ. P. 33(a). If you fail to raise an objection to an interrogatory within the forty-day period allowed, and you do not seek an extension of time within that forty-day period to respond, then you have waived your objection. Practice Note If you cannot obtain the information you need to respond to an interrogatory within the forty-day period after service, you should file objections to the interrogatories to preserve the objections and not wait until the opposing side files a motion to compel. Alternatively, within the forty-day period, you can file a motion for extension of time to respond to the interrogatories, which will preserve your objections.

Each party is limited to thirty interrogatories but can send multiple sets of interrogatories as long as the total number does not exceed thirty. Super. R. Civ. P. 33(b). A party is required to supplement an answer to interrogatory that is no longer correct or when other facts or circumstances have resulted in the answer being inaccurate or incomplete. Under the Rule, a party is obligated to supplement the response within a reasonable time of learning that the information is no longer accurate or complete. The latest date the interrogatory answer can be supplemented is thirty days prior to trial. Super. R. Civ. P. 33(c). Contrary to the way many litigants practice relative to this provision, the Rule is not to supplement an incomplete answer within thirty days prior to trial, but the obligation and the duty is to supplement as soon as you discover the answer to interrogatory is no longer accurate or complete. In responding to an answer to interrogatory, if the information can be obtained from business records and the burden is substantially the same in obtaining the information from those records, you can specify what information can be derived from what set of records and the other side must be afforded a reasonable opportunity to examine, inspect, and copy the records needed so that the information can be ascertained from designated business records. Super. R. Civ. P. 33(d).

2–26

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.3

If you wish to exceed thirty interrogatories, you must seek leave of court and establish good cause for why your case warrants additional interrogatories being served on the other party in excess of thirty interrogatories. The party may not combine multiple questions into one interrogatory to give the appearance that there are only thirty interrogatories when in fact if you separately count all the subparts, the interrogatories will exceed the thirty permitted by the Rule. See Eleazer v. Ted Reed Thermal, Inc., 576 A.2d 1217 (R.I. 1990). If you fail to supplement an answer to interrogatory at least thirty days’ prior to trial, which is the outer limit, you may be precluded from offering the information and/or testimony at the time of trial. The purpose behind excluding evidence that has not been disclosed as required by Rule 33 is to prevent trial by ambush and to eliminate surprise and concealment of facts and/or witnesses. The decision to exclude the evidence is at the discretion of the trial justice and whether the other side was prejudiced by the failure of the party to comply with Rule 33(c). See Gormley v. Vartian, 121 R.I. 770, 403 A.2d 256 (1979); Int’l Depository, Inc. v. State, 603 A.2d 1119 (R.I. 1992); Neri v. Nationwide Mut. Fire Ins. Co., 719 A.2d 1150 (R.I. 1998); Narragansett Elec. Co. v. Carbone, 898 A.2d 87 (R.I. 2006).

§ 2.3.9

Rule 34—Production of Documents and Things and Entry Upon Land for Inspection for Other Purposes

A party may serve on any other party a request to inspect and copy any document within the scope of Rule 26(b), or can inspect any tangible thing within the scope of Rule 26(b) as long as the document and/or inspection pertains to property that is in the possession, custody, or control of the party to whom the request is served. Super. R. Civ. P. 34(a)(1) & (2). A request shall set forth the item or category with reasonable particularity. Super. R. Civ. P. 34(b). If the request is served with the summons and complaint, then the defendant has sixty days to respond after service. Otherwise, a party has forty days to serve a response. If you have an objection to a request for production, you should file the objection within the forty-day period or seek an extension of time. Super. R. Civ. P. 34(b). A party can produce documents in response to a request for production as they are kept in the usual course of business but the party serving the request is not required to guess as to which request for production the documents are responsive. A party is obligated to organize and label the documents in a fashion whereby the party sending the requests will be able to determine which request the documents relate to and/or correlate. Super. R. Civ. P. 34(b).

2–27

§ 2.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

A non-party can be asked to produce documents in accordance with a duly served subpoena duces tecum as required under Super. R. Civ. P. 45. Super. R. Civ. P. 34(c).

§ 2.3.10 Rule 35—Physical and Mental Examination of Persons When the mental or physical condition of a party is in controversy, the court in its discretion may order the party to submit to a physical or mental examination conducted by a licensed medical provider. The order may be granted upon the showing of good cause and shall specify the time, place, manner, conditions, scope of the examination, and shall name the person who will be conducting the examination. Super. R. Civ. P. 35(a). If the person examined would like a copy of the report prepared by the examiner, the person examined is required to turn over like reports or examinations previously made of the same condition to the extent the party is able to obtain such information. Super. R. Civ. P. 35(b)(1). When the party being examined requests a copy of the report from the examiner, he or she waives any such privilege regarding other persons who have examined the party for the same mental or physical condition. Super. R. Civ. P. 35(b)(2). The parties can stipulate to undergoing a physical or mental examination and can set forth their own criteria that will govern the examination in lieu of the requirements stated in Rule 35. Super. R. Civ. P. 35(b)(3). Practice Note When a plaintiff in a personal injury action is claiming a permanent injury, a physical examination by the appropriate medical provider or specialist may be advisable to determine whether the condition is permanent, whether the condition was causally related to the accident and whether the condition correlates to an impairment rating under the latest edition of the AMA Guides to the Evaluation of Permanent Impairment. A medical provider that you select to conduct the examination should be advised before he or she is retained that their testimony may be required at trial if the case does not get resolved prior to the case being reached for trial. Often a physician will commit themselves to a medical record review and/or an examination of the plaintiff but will not commit to being a witness at the time of trial. Thus, determining this ahead of time can help you plan your case and budget for the anticipated expert witness costs.

2–28

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.3

§ 2.3.11 Rule 36—Requests for Admission A party may serve upon another party a written request for admission relative to the truth of any matter within the scope of Rule 26(b) or the genuineness of any document. Each matter to which an admission is requested shall be separately set forth in the request, and the party receiving the request has thirty days to respond unless the request is served in conjunction with a summons and complaint and then the defendant has forty-five days to respond. Super. R. Civ. P. 36(a). The party responding to the requests for admission shall admit the facts, deny the facts, or set forth in detail why the party cannot admit or deny the matter set forth in the request. If a request requires a party to qualify an answer and admit part of it and deny part of it, then the party shall respond accordingly. A party shall not state in its response lack of information or knowledge as a basis for failing to admit or deny the request unless the party has made a reasonable inquiry that the information known or readily available to the party is insufficient to enable the party to admit or deny the matter set forth in the request. Super. R. Civ. P. 36(a). If a party fails to respond to the requests within the thirty-day time period, the matters set forth in the requests are deemed admitted for all purposes of the pending case. The court will only allow a party to amend a response or withdraw a response to requests for admission if there is no showing of prejudice to the party who obtained the admission and that the merits of the action would be subserved by letting the request remain as is without being withdrawn and/or amended. Super. R. Civ. P. 36(b). A Rule 36 request for admission should not be utilized to seek legal theories and/or conclusions from the opposing party. Requests for admission should be used to facilitate the presentation of evidence to which there is no real dispute. Requests for admission can eliminate authentication issues over facts that may be difficult or expensive to prove. See Gen. Elec. Co. v. Paul Forsell & Son, Inc., 121 R.I. 19, 394 A.2d 1101, 1103 (1978) (quoting 4A Moore, Federal Practice § 36.02 at 36-15 (1978)). In order to withdraw a fact that has been deemed admitted, a party has to establish the following elements: • that the admitting litigant has acted diligently; • that adherence to the admission might cause the suppression of the truth, and • that the withdrawal can be made without prejudice to the party who made the request.

2–29

§ 2.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

See Finman, The Request for Admissions in Federal Civil Procedure, 71 Yale L.J. 371, 422 (1962). A party seeking to withdraw a request for admissions has to satisfy a showing that amounts to “excusable neglect.” See Cardi Corp. v. State, 524 A.2d 1092, 1095 (R.I. 1987); Kelley v. K&H Realty Trust, 717 A.2d 646, 648 (R.I. 1998). Thus, the burden is relatively high for a party to establish that it acted diligently in seeking to withdraw the admission and that the party sending the request would not be prejudiced by the withdrawal of the admission. See Barles v. Charette, 457 A.2d 274 (R.I. 1983). Practice Note In contract cases where there is no dispute that the work was performed and no deficiencies with the quality of the work, requests for admission are a cost-effective means of establishing the facts you need to support a motion for summary judgment. Requests for admission are less expensive than taking a deposition and are more narrowly tailored than interrogatories. When preparing a request for admission, each fact should be separately numbered, and documents that can be readily authenticated should be attached.

§ 2.3.12 Rule 37—Failure to Make or Cooperate in Discovery: Sanctions You may file a motion to compel against a party and against any person to which a discovery request has been propounded under the rules to obtain a response to the discovery whether propounded under Rule 30, 31, 33, 34, 35, or 36. Before a motion is filed, you must make a good faith effort to obtain the outstanding discovery without the necessity of filing a motion to compel. Super. R. Civ. P. 37(a)(2). Practice Note The good faith letter process has resulted in parties’ obtaining additional time to respond to the outstanding discovery by a letter agreement of the parties allowing for additional time. In theory, this process should have the desired effect of reducing the amount of motions filed on the motion calendar to obtain discovery responses.

When a party has to file a motion to compel under Rule 37 to obtain responses to discovery, the party can seek the reasonable costs incurred in filing the motion as long as the party has complied with his or her obligations under the Rule, and as long as the opposing party’s nondisclosure was not substantially justified or

2–30

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.3

that other circumstances make an award of expenses unjust. Super. R. Civ. P. 37(a)(4)(A). Rule 37 allows the moving party to request that final judgment of dismissal, or that the nonmoving party, be defaulted if the nonmoving party does not comply with the order compelling discovery within a thirty-day period of time or such shorter or longer time as the court orders or as may be stipulated by the parties. Super. R. Civ. P. 37(a)(4)(A). If a party or other person refuses to comply with an order compelling a further response to discovery, the party and/or person can seek the sanctions available under Rule 37. These sanctions might include certain facts being established for the purposes of the litigation; prohibiting the disobedient party from introducing certain evidence, claims, or defenses at the time of trial; striking out a pleading or dismissing the action; entering a default judgment against a disobedient party; and ordering the payment of reasonable attorney fees under the right set of facts and circumstances. Super. R. Civ. P. 37(b)(2)(A)(B)(C). The court may treat the failure to comply with an order as a contempt of court. Super. R. Civ. P. 37(b)(2)(D). If a party fails to appear for a deposition, the person cannot argue that there was an objectionable basis for not appearing if the person did not seek a protective order as required under Rule 26(c). Before a protective order is filed, the person is required to send a good faith certification to see if the matter can be resolved without the filing of the protective order. Super. R. Civ. P. 37(d). There are many reported cases on whether sanctions against a party and/or person for noncompliance with a discovery rule or order under Rule 37 was appropriate under the circumstances, or whether it rose to an abuse of discretion. Those cases, although not being analyzed in this chapter, can be viewed in the notes to decisions following Rule 37 in the 2009 Rhode Island Court Rules Annotated book. Whether sanctions are appropriate in a given case is so fact specific that anticipating the scenarios when a sanction might be imposed is not an easy task. However, a blatant disregard of the discovery rules and/or of a court discovery order and the lack of any good faith effort to comply will likely establish a sufficient foundation for a request for sanctions. Practice Note If you have filed a motion to compel a discovery response and have set forth in the motion the number of days for compliance and if no objection is filed three days before the hearing date, the motion will be granted by rule of court, and the motion will not be placed on the motion calendar. Super. R. Civ. P. 7(b)(3)(vii). In the case of

2–31

§ 2.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Greenfield Hill Investments, LLC v. Miller, 934 A.2d 223 (R.I. 2007), the Rhode Island Supreme Court held that when a motion has been granted by rule of court a separate order is not required to be filed in the case. Greenfield Hill Invs., LLC v. Miller, 934 A.2d at 225. Even though an order may not be required to be filed, it is the best practice to present an order to the court so that your file and the court’s file can be properly tracked relative to what transpired regarding the motion that was filed. If a subsequent motion to dismiss and/or default needed to be filed, it may be more difficult to prove that the prior order was not complied with if in fact no written order was submitted and all that is in the court file is the motion and a docket entry indicating that the motion was granted by rule of court. It is recommended that an order be presented to the court on every rule of court motion that is granted without a hearing so that the order can be referred to as needed in the case on subsequent discovery motions.

§ 2.3.13 Rule 45—Subpoena A subpoena is issued to command a person to attend a trial, a hearing, a deposition, to give recorded testimony, and/or to produce documents. Super. R. Civ. P. 45(a)(2)(A)(B)(C). A subpoena only has force and effect in Rhode Island. A Rhode Island subpoena has no force and effect outside the borders in a state proceeding. Super. R. Civ. P. 45(b)(1). A subpoena may be served by a sheriff, constable, or any person who is not a party to the action who is eighteen years of age or older. Super. R. Civ. P. 45(b)(1). If a person served with a subpoena has an objection to responding to the contents of the subpoena, within fourteen days of being served with the subpoena, a written objection should be served on the party serving the subpoena setting forth the grounds for the objection. Once an objection has been served, the party serving the subpoena may file a motion to compel seeking production of the information sought in the subpoena. Super. R. Civ. P. 45(c)(2)(B). In responding to a subpoena, the person should produce documents as they are kept in the ordinary course of business, and the appropriate labels and/or other method of identifying which documents correspond with which requests should be set forth. If any documents are withheld based on privilege, a privilege log should be produced so that the party serving the subpoena can contest the claim of privilege. Super. R. Civ. P. 45(d)(2).

2–32

ANALYZING DISCOVERY AND INVESTIGATION ISSUES

§ 2.3

If a party served with a subpoena fails to respond to the subpoena, the party may be held in contempt of court. Super. R. Civ. P. 45(e). Practice Note In order to find someone in contempt of court, you will have to obtain a show-cause citation from the court which should be served on the person in the same manner the subpoena was served, and upon hearing, the court can determine whether the noncompliant party has good cause for failing to respond to the subpoena. The court may fix a new time for compliance, and the order may provide that if the person fails to comply with the terms of the order, then the court may proceed with contempt proceedings upon further notice to the noncompliant person. In a civil contempt proceeding, the burden of proof is by clear and convincing evidence that a lawful decree was violated. See Trahan v. Trahan, 455 A.2d 1307, 1311 (R.I. 1983); Palmigiano v. Garrahy, 448 F. Supp. 659, 670 (D.R.I. 1978). A party does not have to show willfulness to establish a civil contempt. Trahan, 455 A.2d at 1311 (citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949)).

It has often been said that in a civil contempt proceeding, the person accused of the contempt carries the keys of their own prison cell in their pocket as he or she has the ability to purge him or herself of the contempt by complying with the court order. See Biron v. Falardeau, 798 A.2d 379, 382 (R.I. 2002) (citations omitted). In a civil contempt proceeding, the court can award attorney fees, which award should be reasonably related to the extent of the contempt in the particular case. See Moran v. R.I. Bhd. of Corr. Officers, 506 A.2d 542, 544 (R.I. 1986); Now Courier, LLC v. Better Carrier Corp., 965 A.2d 429, 436 (R.I. 2009). In a civil contempt proceeding, an affidavit need not be supplied to support a request for attorney fees. Testimony of a witness as to the reasonableness of the request for attorney fees is also not required. See Moran v. R.I. Bhd. of Corr. Officers, 506 A.2d 542, 544 (R.I. 1986). A subpoena cannot be used by a party to circumvent Rule 34. Thus, if you neglected to obtain documents under Rule 34, you cannot attempt to subpoena those documents for trial. See Butera v. Boucher, 798 A.2d 340–45 (R.I. 2002); see Charles Alan Wright & Arthur R. Miller, 9A Federal Practice & Procedure § 2452 (Supp. 2002). When issuing a subpoena to certain federal and/or state agencies, the keeper of records does not have to appear in person for the deposition but can respond to the subpoena by supplying a business record affidavit authenticating the business records and forwarding the responsive documents to the party with the appropriate

2–33

§ 2.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

certification in lieu of his or her personal appearance at the deposition. See R.I. Gen. Laws § 9-17-5.1 (1997 Reenactment). If you are issuing a subpoena to obtain copies of someone’s medical records for use in a case where the party has put his or her medical condition into controversy, you must comply with the requirements of R.I. Gen. Laws § 5-37.3-6.1 (2004 Reenactment) of the Confidentiality of Health Care Communications and Information Act. Under this Section, a copy of the subpoena must be served on the individual whose records are being sought and that person has twenty days to challenge the records from being released. If the party wishes to challenge the subpoena, a motion to quash should be filed. If the twenty-day period passes and no motion to quash is filed, then the person can serve the subpoena on the health-care facility or medical provider to obtain the records. When issuing a subpoena to a health-care facility licensed under the laws of the State of Rhode Island, if you would like the keeper of records to appear in person with the records, you must put on the subpoena language to the effect that “The procedure authorized pursuant to § 9-19-39 will not be deemed sufficient compliance with this subpoena.” See R.I. Gen. Laws § 9-19-39(e) (1997 Reenactment). If you would like original records to be produced and not copies at the deposition, in accordance with R.I. Gen. Laws § 9-19-39, you must state in the subpoena language to the effect that “Original records are required, and the procedure authorized pursuant to § 9-19-39 will not be deemed sufficient compliance with the subpoena.” See R.I. Gen. Laws § 9-19-39(f) (1997 Reenactment). If you issue a subpoena to the Department of Labor & Training to obtain temporary disability insurance benefits, such records are confidential and cannot be disclosed by the Department of Labor & Training in accordance with R.I. Gen. Laws § 28-39-19 (2003 Reenactment). An attorney representing the Department of Labor & Training will file a motion to quash the subpoena which will be heard on the motion calendar. The court will decide whether the records are relevant to the case and whether the subpoena is narrowly tailored to obtain only the information that is required that is related to a claim or defense in the case. See Powers, ex rel. Dep’t of Employment Sec. v. Superior Court, 79 R.I. 63, 82 A.2d 885 (1951).

2–34

CHAPTER 3

Creating a Discovery Plan Mark H. Grimm § 3.1

Introduction .......................................................................... 3–1

§ 3.2

Analyzing the Discovery Needs of a Case........................... 3–2

§ 3.3

§ 3.2.1

Research, Understand, and Know the Law and the Subject Matter .......................................... 3–3

§ 3.2.2

Examination of the Available Facts and Documents...................................................... 3–5 (a)

The Client..................................................... 3–5

(b)

Assess and Consider Whether Public Sources of Factual Information Are Available................................................ 3–6

§ 3.2.3

Identify Additional Sources of Discoverable Information............................................................ 3–7

§ 3.2.4

What is the Best Way to Obtain the Information You Seek ............................................................... 3–7

§ 3.2.5

Is Expert Testimony Likely? ............................... 3–10

§ 3.2.6

Periodic Review of Discovery Needs...................3–11

Evaluating the Cost of and Budgeting Discovery .............3–11 § 3.3.1

Overview: Why Budget? ......................................3–11

§ 3.3.2

What to Consider in Projecting Discovery Costs................................................... 3–12

§ 3.3.3

Special/Substantial Cost Issues to Consider........ 3–13 (a)

Expert Fees................................................. 3–13

(b)

Audiovisual Depositions of Evidence/ Computer Technology................................ 3–14

3–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

(c) § 3.4

Scheduling Discovery Events .............................................3–15 § 3.4.1

§ 3.5

Litigation Support Services ........................3–15

Develop a Logical Progression of Discovery.......3–16 (a)

Prefiling Discovery .....................................3–16

(b)

Postfiling.....................................................3–16

§ 3.4.2

Complying with Court Rules and CaseSpecific Orders.....................................................3–18

§ 3.4.3

Scheduling Depositions and Inspections..............3–19

§ 3.4.4

Dealing with Requests for Extension of Time .....3–21

§ 3.4.5

Moving to Amend Scheduling Order Deadlines ...................................................3–21

§ 3.4.6

Supplementation of Discovery Responses ...........3–22

Conclusion ...........................................................................3–24

EXHIBIT 3A—Sample Rule 30(b)(6) Deposition Notice...............3–25 EXHIBIT 3B—Sample Miscellaneous Petition to Produce Records ...........................................................................3–27 EXHIBIT 3C—Sample Miscellaneous Petition to Perpetuate Testimony ...........................................................................................3–29 EXHIBIT 3D—Motion to Modify Scheduling Order ....................3–31

3–ii

CHAPTER 3

Creating a Discovery Plan Mark H. Grimm

Scope Note This practical chapter provides guidance on the key steps to take in creating a plan of discovery for your case. Beginning with the analysis of discovery needs, it then covers how to assess the costs inherent in a discovery plan. Before concluding, the chapter discusses ways in which to schedule various discovery events in order that a logical progression of discovery will result.

§ 3.1

INTRODUCTION

It is often said that the key to success at trial is preparation. The key to good preparation is planning. A good sailor will always chart his course before setting out to sea; a wise builder will always make certain that he has a set of architectural plans before beginning construction. The successful litigator develops a strategy at the outset and creates a discovery plan that will enable him or her to develop the case in an efficient and purposeful manner. Development of a plan requires that counsel analyze and determine the following: • What discovery is needed for that matter—what do I know; and what do I need to know? • What should I budget for discovery, and what is the best and most cost-efficient way to satisfy my discovery needs within my budget? • What is my strategy for scheduling the necessary discovery events over the course of the litigation? • What is my goal? and • What can be done to best achieve that goal effectively and efficiently—in other words, what is the best way to resolve the litigation? (e.g., by a dispositive motion, preliminary injunction hearing, settlement, arbitration, mediation, trial, or other mechanism). 3–1

§ 3.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

This chapter seeks to set forth the points to be considered and a method for mapping out a discovery plan. Obviously, different types of cases demand different treatment, and the goals of defense counsel will require a different focus and strategy than that of plaintiff counsel. Nonetheless, there are basic steps and guidelines which can be universally applied to aid in the development of a discovery plan. While the author’s vantage point is that of a plaintiffs personal injury/medical malpractice lawyer, the approach described in this chapter is applicable to all types of practice where the common goal is the same: to uncover the truth and then utilize that information to properly advise and assist your client.

§ 3.2

ANALYZING THE DISCOVERY NEEDS OF A CASE

The importance of analyzing the discovery needs of the case at the outset cannot be overemphasized. Not only will it allow you to prepare a roadmap for proceeding in the case, such analysis may cause you to reassess how far you are willing to proceed or whether you are willing to proceed at all. For example, plaintiff counsel who is presented with a complex business litigation or products liability case may decide that he or she cannot afford to devote sufficient time as would be required to conduct the necessary discovery to properly prepare the case. Conversely, defense counsel’s assessment may lead him or her to advise the client to consider settling the matter quickly rather than incur the time and expense of full-fledged discovery. Several areas need to be analyzed, including but not limited to the following: • What are the legal issues and substantive law governing the claims and defenses in the matter? • What documents need to be obtained and, of those documents, which –

are available from the client or can be obtained outside of the discovery process;

–

need to be obtained through the discovery process from the opposing party or otherwise;

–

are protected or privileged or otherwise unavailable?

• What individual persons and/or legal entities may have discoverable information and/or documents and, of those persons or entities, which can and should be approached and provide information

3–2

CREATING A DISCOVERY PLAN

§ 3.2

outside of the discovery process and which must and/or should supply information through formal discovery? • Which discovery methods are best suited and are most likely to uncover the relevant information necessary to the case? and • What, if any, issues in the case will require expert testimony? After considering all of the above factors, counsel may come to a reasoned conclusion as to whether and how best to proceed.

§ 3.2.1

Research, Understand, and Know the Law and the Subject Matter

Common sense dictates that the litigator must know and understand the law as it relates to case he or she is prosecuting or defending. No one would trust a surgeon to perform an appendectomy unless that surgeon had studied and knew the anatomy in that area of the body; nor should lawyers trust themselves to handle a case involving legal issues with which they are not familiar and have not thoroughly researched. Indeed, with complex litigation that requires an understanding of lengthy and dense statutes and regulations, if the practitioner does not have the time or dedication to research and learn the law at the outset, the best representation may be no representation; the matter should be referred to someone who does have the requisite expertise in that area of the law. In order to create an effective discovery plan, one must first understand the legal terrain, how it may have changed, and any new roads that have opened up before mapping and charting a course. No one should automatically assume that, because they handled similar cases in the past, they need not brush up on the law for a new case. For example, a store or restaurant slip and fall/premises liability case may have been easily defended years before because the plaintiff was unable to establish actual notice of the defective condition. Yet a review of the case law would make it clear to the practitioner that the defense would have to take into account constructive notice as well. See, e.g. Mead v. Papa Razzi Rest., 840 A.2d 1103 (R.I. 2004). A proper analysis of the case requires that the practitioner check for and monitor any changes in the case law or statutes that may alter the landscape of the claim. The prudent litigator should also be on the lookout for any statutes or case law that may give rise to new claims or evidentiary issues. For example, a case involving a patient discharged from the emergency room who is later found to have a life-threatening condition that the doctor failed to diagnose may seem like a straightforward medical malpractice claim. However, there may be a federal 3–3

§ 3.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

EMTALA claim as well. The prudent practitioner would research the requirements of this law and develop a discovery plan that would include an inquiry into whether or not this claim is supported by the facts. Likewise, where the initial review suggests that critical piece of evidence may be missing, one may wish to initiate the case by researching recent evidentiary rulings and simultaneously sending a letter requesting that the potential opposing party preserve certain evidence, setting up a claim for spoliation. The prudent practitioner will not only become well-versed in the law, but will also act to become reasonably familiar with the subject matter of the case. Certainly, a lawyer who seeks to prosecute or defend something as complex as a medical malpractice claim will want to have researched the medicine in the case at the outset in order to understand where and from whom to look for factual information. For example, in order to understand how to proceed on a claim for negligence in prescribing medication, one would need to understand and research the medication itself, including the indications for that medicine, the common side effects, what lab results need to be monitored, who can prescribe the medication and so on. Lawyers who do not understand the subject matter of the case and do not perform the necessary research at the beginning may overlook critical areas that need to be developed in their discovery plan and will be playing catch-up as trial approaches. Ethics Commentary It goes without saying that an attorney is obligated to provide competent representation to a client. It is also mandated by Rule 1.1 of the Rhode Island Rules of Professional Conduct. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Competence in a novel area of law may be obtained through additional study or consultation with an attorney with more experience in the particular area of law. Rule 1.5 of the Rules of Professional Conduct requires that an attorney charge a reasonable fee, and the rule includes specific factors that help determine if the fee is reasonable, including “1.5(a)(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.” If the attorney intends to charge the client for the time or costs associated with acquiring the necessary level of competence to provide the sought-after representation, he or she would be well advised to inform the client at the outset of the representation.

3–4

CREATING A DISCOVERY PLAN

§ 3.2.2

§ 3.2

Examination of the Available Facts and Documents

There are a number of sources that need to be tapped before determining how best to proceed with discovery. Such sources include but are not limited to the client, documents in the client’s possession, public and private entities, sites and locations that are either accessible or open to the public, and outside eyewitnesses or witnesses.

(a)

The Client

Your first meeting with a potential client is an opportunity to get an overall view of the claim and impression of the person/people (or, in the case of a corporation, the officer or “point person” from the company) who you will represent. Take full advantage of this meeting to obtain as complete a description of the claim as possible. Allow the client to speak at length. Not only will this possibly lead to disclosure of information you might not otherwise have obtained by pointed questioning, it will also allow you to get a sense of the client’s personality, motivation, and how “presentable” he or she may be. If possible, have the client provide as many of the pertinent documents in advance of your initial meeting so that you may review them and have a better sense of the facts. This will enable you to ask questions and inquire regarding details after the client has presented the story. If, as is often the case, many of the relevant documents are not immediately available and must be requested, make certain you make a thorough inquiry regarding records or documents that should be obtained. For example, a plaintiff’s attorney considering a potential personal injury claim will need to extract the client’s complete medical history in order to review not only medical records which are directly relevant to the claim, but also those which precede or come after the claim. This allows the attorney to examine the client’s medical and personal history and evaluate other factors, such as whether the client had preexisting or has ongoing medical issues; whether or not there other medical issues which may affect the viability or value of the claim; and whether there are personal issues (for example, a psychiatric history) which may become problematic. Similarly, on the defense side, there may be a prior history or prior claims which could negatively impact the case. Use common sense. Start your analysis by reviewing all the relevant documents in the client’s possession, custody, or control. Make proper inquiry: determine what additional documents the client can obtain on request from agents or service providers, such as attorneys, accountants, engineers, or medical providers. In the case of a corporation, determine whether or not there are documents that 3–5

§ 3.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

can and should be obtained from a parent, affiliate, or subsidiary company. In cases where the documents are voluminous, work with your client to identify the most important documents and focus on them first. It may be necessary to conduct more than one interview with the client in order to properly prepare your discovery plan. Certainly, if the client is a corporation, partnership, or other business entity, the interview process may extend to all the knowledgeable officers, directors, and employees of the company.

(b)

Assess and Consider Whether Public Sources of Factual Information Are Available

Before the discovery process even begins, counsel should also consider and fully utilize other sources of information available to the general public. The Rhode Island Secretary of State’s office, the Securities and Exchange Commission, the Registry of Motor Vehicles, the Rhode Island Department of Health, and the Rhode Island court system, all have either public databases and/or records available for examination. Counsel can obtain financial statements of public companies, Dunn & Bradstreet reports, and potentially helpful statements made on company Web sites or through company press releases, all from publicly available sources. Indeed, the Internet has opened the door to a wealth of readily accessible information that may be used to identify additional issues to be examined during discovery not only with respect to the subject matter of the case, but in many instances with respect to the parties to the litigation. Online databases can be used to identify doctors who have had their licenses suspended or revoked, or to reveal the criminal record of a person. A simple search may lead not only to a company Web site, but to news articles and publications concerning that company. Social networking Web sites, people locator sites, and expansive search engines can all be used to obtain significant information concerning individuals as well. In many cases, some of the most important factual information is readily available. In a motor vehicle accident, the police accident report is often essential; it is generally produced upon request. With any case that arises out of an event or occurrence, be it a premises liability case, product liability case, motor vehicle accident, or sometimes even a medical negligence claim, a visual inspection of the scene of the occurrence may very often provide vital information to help identify issues to be examined during discovery. If counsel cannot visit the scene either because of logistical problems or because it is not open to the public, this should alert counsel that photos need to be obtained and/or that a request for entry upon land needs to be made during discovery. 3–6

CREATING A DISCOVERY PLAN

§ 3.2

For materials held by public agencies that are not readily available, counsel should consider submitting a request under Rhode Island Access to Public Records Act, R.I. Gen. Laws § 38-2-8(b), or its federal counterpart, the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

§ 3.2.3

Identify Additional Sources of Discoverable Information

After counsel has met with the client, identified the factual information available from and/or through the client, and determined what information is available from other public sources, he or she must next identify other persons or legal entities that potentially possess discoverable information or documents. Obviously, the opposing party or parties have information that will need to be obtained through the discovery process. Oftentimes, however, there may also be nonparties, including eyewitnesses, government agency officials, physicians, coworkers, family members, and other witnesses who may also have discoverable information or documents. To the extent that an eyewitness is “available” to be interviewed, the prudent litigator will attempt to not only speak with that eyewitness in advance of litigation, but also take a statement to “tie the witness down” to his or recollection of the event at a time when the matter is fresh. There are, nonetheless, many situations where counsel cannot obtain information or documents from an individual or entity outside the discovery process. For example, while plaintiff’s counsel in a personal injury case may request medical records and speak with the plaintiff’s physicians freely (assuming they are willing to do so), defense counsel cannot contact the physicians ex parte or obtain the patient’s medical records because of the Confidentiality of Healthcare Information Act, R.I. Gen. Laws § 5-37.3-1 et seq. See R.I. Gen. Laws § 5-37.3-4(b)(8)(ii). Similarly, plaintiff’s counsel may not be able to obtain information from the Department of Health concerning disciplinary proceedings against a doctor unless those proceedings resulted in disciplinary action. Barring such statutory or ethical prohibitions, however, attorneys should identify and attempt to contact such witness and sources to gain additional information unless there is a clear strategic reason not to do so.

§ 3.2.4

What is the Best Way to Obtain the Information You Seek

After counsel has made a thorough assessment and identified persons or entities that may have discoverable information, he or she must next determine which method or form of discovery will best allow for thorough, effective and efficient production and disclosure of the information sought. For discovery directed to a 3–7

§ 3.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

party opponent, the general practice is to propound interrogatories with a request for production of documents and perhaps a request for admissions, and thereafter proceed with depositions. See Super. R. Civ. P. 30, 33–34, 36. However, consider carefully what information you need to obtain at the outset for the particular case. Just because the general practice is to proceed in this fashion does not mean that that is the best approach for every case. Consider the nature of the source and nature of response provided by different discovery formats and the detail you anticipate receiving in response to the request. For example, depositions are a preferred method for detailed factual discovery because counsel has the benefit of being able to cross-examine and follow up with questions that may not have been anticipated. For this reason, depositions very often lead to candid and sometimes unexpected disclosures. In contrast, interrogatory answers are often general and “sanitized” by opposing counsel, who invariably assist in preparing the answers. Nonetheless, interrogatories are extremely useful in obtaining nonprivileged factual information known to counsel that may not be known to the individual party, such as the identity of all persons with knowledge. (These differences are also relevant in determining a logical progression for discovery, which is discussed at length in § 3.4.1 below.) Counsel should further take into account the following for certain specific discovery methods: Depositions: When seeking discovery from a corporation or other business entity, the deposition of the entity itself can be noticed under Rule 30(b)(6) of the Rhode Island Superior Court Rules of Civil Procedure. This is a powerful tool, as the Rule mandates that the corporation, be it a party or subpoenaed non-party, designate and produce a person or persons who “shall testify as to matters known or reasonably available to the organization” concerning those matters that are specifically identified in the deposition notice. In other words, the corporation is obligated and required to produce one or more persons who are must divulge (subject, of course, to any applicable privileges) all of information available to the corporation on the particular subject or subjects listed by counsel in the notice. (See Exhibit 3A, below) In addition, individual officers, directors and employees of the corporation may be deposed pursuant to Rhode Island Superior Court Rules of Civil Procedure 30 and 45. Subpoenaed Document Requests: As noted above, there are many situations in which you will have to employ the discovery process to obtain information and/or documents from nonparties. Where counsel is only concerned with obtaining documents from a nonparty business entity, such documents may be subpoenaed with no need for testimony: Rhode Island Superior Court Rules of Civil Procedure 45(c)(2)(A) provides that a party who is commanded to produce documents need not appear in person for a deposition unless commanded to do so. R.I. Gen. Laws § 9-19-39 also provides that subpoenaed medical records 3–8

CREATING A DISCOVERY PLAN

§ 3.2

may be simply produced accompanied by a certification, containing specific language set forth in the statue, (which language serves to satisfy admissibility under the rules of evidence). This allows for efficient production of a number of records, such as where the attorney is seeking production of medical records from a number of providers. In other instances, the attorney may choose to subpoena and command the “keeper of records” for the business entity to appear and give testimony in order to establish, on the record, that the records are complete, to elicit testimony to establish the authenticity of the records and to satisfy the “business records” exception to the hearsay rule. In other instances, counsel may wish to further explore the efforts made to search for and locate the records sought, determine who did the search, who ordered the search, the directions that were given, what files were examined to respond to the request, et cetera. When determining which method (i.e., simple production versus production with testimony) to use, consider whether or not you have concerns that the entity to whom the subpoena is directed may be relied upon to produce complete and authentic documents and whether there may be problems identifying the specific documents you are seeking. Interrogatories: When propounding interrogatories, particularly on a corporation or other business entity, bear in mind that Rule 33 allows a party to answer an interrogatory simply by specifying the records from which the answer may be derived or ascertained. This option is available where “the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served.” Try to anticipate the likely response to an interrogatory. If the question yields an answer that merely refers counsel to a set of documents, be prepared to conduct a witness or Rule 30(b)(6) deposition in addition to or in lieu of the interrogatories. Requests for Production: Rule 34 provides that a party who produces documents for inspection shall produce them as they are kept in the ordinary course of business or shall organize and label them to correspond to categories in the request. In other words, if you request documents, do no expect the response to be neatly organized and tailored to your categories; the Rule does not require this. Additional explanatory deposition testimony may be necessary. Entry Upon Land: Rule 34 also allows for a party to make a request for entry upon land and inspection. This request may be directed to parties and nonparties, as provided by Rule 45. This mechanism is essential for actions in which an inspection of the site or locus of the event could not be performed because the land was privately owned and/or inaccessible without judicial sanction. Physical and Mental Examination: Rule 35 allows for court ordered mental or physical examination of a party where the party’s mental or physical condition is 3–9

§ 3.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

in controversy. The order may be made only on motion “for good cause shown” and upon notice. This discovery mechanism is often employed by defense counsel in personal injury cases where the cause or extent of a plaintiff’s injuries are in dispute, although it is not limited to such instances. Requests for Admission: Counsel may consider utilizing this discovery tool in order to quickly narrow issues for discovery and trial, particularly when attempting to “weed out” which documents or claims are going to be challenged or disputed. The Rule specifically provides that a party cannot give lack of information or knowledge as a reason for failing to admit or deny unless the party states that a reasonable inquiry has been made and that the information “known or readily obtainable by the party is insufficient to enable the party to admit or deny.” If the responding party can admit or deny only part of a request, the party is required to “specify so much of it as is true and qualify or deny the remainder” See Super. R. Civ. P. 36(a).

§ 3.2.5

Is Expert Testimony Likely?

When formulating a discovery plan, counsel must make a determination as to whether or not expert testimony will be necessary either to establish an aspect of the claim or defense. R.I. Rules of Evidence 701, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue,” expert testimony may be utilized. In some types of cases, medical malpractice and products liability cases in particular, expert testimony will almost always be necessary. Consideration and anticipation of the need for expert testimony is critical in two respects in formulating a discovery plan. First, early consultation with an expert will often reveal areas of inquiry that counsel may not have considered, and may suggest new areas of discovery or even alter the focus of the discovery to be obtained. Second, when expert issues are anticipated, the discovery directed to the opposing party should include a set of “expert interrogatories” under Rule 26(b)(4) (A)) and further include interrogatories asking to identify any scientific, medical, or other learned treatise literature to be relied upon by the party. Furthermore, counsel will need to consider whether or not to anticipate taking of expert depositions in the case. Expert depositions are increasingly common, as Rule 26(b)(4)(A) now provides that a party may depose any person who has been identified as an expert after expert interrogatories have been responded to; leave of court is not required. Unless otherwise ordered by the court, the party deposing the expert shall pay the expert “the reasonable fee” for the time spent attending the deposition and the reasonable expenses incurred in attending. Super. R. Civ. P. 26(b)(4)(A). As a result of this Rule, counsel should anticipate, plan for and expect depositions of experts if their testimony is needed. 3–10

CREATING A DISCOVERY PLAN

§ 3.2.6

§ 3.2

Periodic Review of Discovery Needs

The above discussion has focused upon the initial stages of litigation and creating a discovery plan at the outset. Ideally, by creating a discovery plan and anticipating what is to come, the prudent litigator will have already set in motion the basic and critical discovery he or she will need. Obviously, however, no one has a crystal ball. Initial discovery may reveal new facts, uncover new claims or potentially new defenses, or drastically alter the measure of damages. Amendments to the pleadings, rulings on motions for summary judgment, or the discovery and addition of new parties may all alter the focus or shape of the case. Accordingly, it is wise to plan for periodic, regular reevaluation of the discovery needs of the case to determine whether additional or different discovery needs to occur in order to adapt to any new facts or changes in the lawsuit.

§ 3.3

EVALUATING THE COST OF AND BUDGETING DISCOVERY

§ 3.3.1

Overview: Why Budget?

After counsel has made an initial assessment of discovery to be undertaken in the case, an evaluation should be made as to the probable cost to conduct discovery. For plaintiff’s counsel, this assessment may, in some instances, determine whether or not the case should be pursued. For example, litigating a product liability case with minimal damages may be cost prohibitive if the attorney’s analysis indicates that discovery will include engaging several experts, deposing experts for the defendant, travel expenses, and hours or even days devoted to the review of voluminous documents at a company warehouse. For defense counsel, the budget estimate may lead to a recommendation to the client to consider settling the matter rather than incurring further expense. The assessment and creation of a discovery “budget” will also allow the attorney to effectively forewarn the client of the cost and time-consuming nature of the discovery process. If the client knows what to expect, he or she or it is less likely to complain or become dissatisfied at a later date when expenditures have mounted and significant time has passed. Moreover, when given a good faith estimate of likely discovery costs, the attorney and the client are both in a better position to prioritize discovery activities and costs, and determine what discovery might be postponed or even potentially omitted to keep costs down.

3–11

§ 3.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 3.3.2

What to Consider in Projecting Discovery Costs

Of course, the discovery needs of each case are different. Nonetheless, there are several factors that generally affect costs in every case. Among other things, counsel should consider: • How detailed and complex of the issues? This will affect the complexity of the interrogatories and document requests to be served. • How complex is the “paper discovery” that counsel anticipates will be propounded and to which counsel and the client must respond? • What is the number and volume of the documents to be requested and produced? • What is the number, volume, and complexity of the documents to be reviewed during discovery? • How many depositions are likely to be taken or defended in the case? • What is the anticipated complexity and length of those depositions? • Where are the depositions to be held—is there significant travel time and expense to be incurred? (Note that a nonresident, even a defendant, cannot be required to travel to Rhode Island to sit for a deposition. Cianci, Inc. v. Logan, 652 A.2d 961 (R.I. 1985)). • What is the anticipated cost of deposition transcripts, document copying, and travel? • Are there possible needs that would enhance these costs; e.g., will there be depositions that need to be videotaped? Conversely, are there ways to reduce these costs; e.g., can depositions be taken by telephone or video conferencing? • How likely is it that there will be discovery disputes and significant motion practice? For defense counsel, any assumptions made above should be clearly stated in the proposed budget; indeed, some clients will require a detailed anticipated budget in which the attorney will necessarily set forth his or her assumptions. For plaintiff’s counsel handling a matter on a contingent fee basis, while a formalized budget may not be required, it would certainly be prudent to make the same 3–12

CREATING A DISCOVERY PLAN

§ 3.3

analysis and advise the client of expected costs both in advance and as the case progresses. No one wants their client to get “sticker shock” when seeing the costs that have been expended, particularly when those costs are to be deducted from, and hence reduce, any potential recovery. Certainly, there are factors that no attorney can control which will impact discovery costs. Among other things, discovery tactics adopted by opposing counsel or parties, a greater or lesser degree of cooperation from third parties served with subpoenas, the cooperation and availability of witnesses, and court rulings on discovery disputes and motions may all drive up costs. Counsel should clearly advise the client that the budget consists of estimates presented in a good faith attempt to project the costs, but that these wildcard factors may adversely impact discovery costs.

§ 3.3.3

Special/Substantial Cost Issues to Consider

The basic discovery budget will take into account the factors described above. Certain factors will substantially drive up the cost of discovery and must be evaluated and carefully considered as special costs. Cases which require the use of experts, audiovisual and/or computer technology, and/or the use of litigation support including computer storage and trial presentation technology will require a substantial outlay that must be considered and budgeted. Obviously, to the extent that some or part of these expenditures will not be made unless and until the case comes to trial, they will remain prospective costs; once trial becomes likely or certain, they will figure into a cost benefit analysis between settlement and trial. Nonetheless, the prudent litigator will advise his or her client of such estimated prospective trial costs well in advance in order that the client knows what he or she is committing to when pressing for trial. In some cases, these expenses, particularly expert fees, will be incurred to a lesser degree during the discovery phase. These costs are treated below:

(a)

Expert Fees

The use of experts for litigation has become almost commonplace. Although expert witnesses are in many cases necessary or even indispensable at trial, they can also provide a ready and valuable source of information during the discovery phase of any lawsuit that presents medical, scientific, technical, accounting or other specialized issues. Experts are particularly useful in preparing for discovery depositions of parties or witnesses who have specialized training. They may also guide counsel in drafting specialized interrogatories, requests for production, in determining what records or witnesses to subpoena, and in responding to discovery requests propounded by opposing counsel. Counsel should consider 3–13

§ 3.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

the extent to which they intend to rely on the expert not only at trial, but as a consult source during the discovery phase, and include this expense in the budget.

(b)

Audiovisual Depositions of Evidence/Computer Technology

Under Rule 30(b), a deposition may be taken by audiovisual means without first obtaining court approval. So long as the deposition notice advises the opposing party of the intention to take the deposition by video or other audiovisual means, the use of video is proper; it is up to the opponent or opposing party to object to block the use of videotape. Indeed, Rule 30 (b)(3) provides that any party may designate another method to record the deposition, provided that the deponent and other parties are given prior notice. Accordingly, counsel may wish to consider conducting audiovisual depositions of any important witnesses, including treating physicians, expert witnesses, or other critical witnesses who may not be present at trial, or with whom there is a benefit to preserving and showing the visual aspect of the testimony (e.g., witnesses who may be relying upon visual aids to explain their testimony, or adverse witnesses the counsel believes might not present as well at a deposition as they would later when prepared for trial). Unless the parties agree to share the cost of making an audiovisual recording, these costs will be born by the party who seeks to record the proceedings. One should try to anticipate the need for audiovisual depositions as early as possible and budget accordingly. Conversely, where there are out-of-state depositions, counsel should consider whether or not costs may be reduced by conducting the deposition via telephone or videoconferencing, rather than traveling to conduct the deposition in person. (See Rule 30(b)(7), which provides that the parties may stipulate in writing or may upon motion order that a deposition be taken by telephone or other electronic means.) The decision to use an alternative method will obviously depend in large part on counsel’s sense of whether the effectiveness or impact of the deposition will suffer if not done in person; and whether there are logistical problems where the deponent is to be examined about a number of documents or exhibits. The latter problem can often be solved by agreeing to and premarking exhibits in advance, so that the parties in both locations are literally “on the same page.” If the out-of-state deponent needs to be subpoenaed, consider whether there will be costs associated with engaging local counsel to make an application to the court for a subpoena and service. In instances where the event giving rise to the litigation is complex and may benefit from an audiovisual and/or computer generated recreation to aid in settlement discussions and/or at trial, counsel should consider the potentially substantial 3–14

CREATING A DISCOVERY PLAN

§ 3.3

costs that may be associated with this endeavor. Similarly, if the case is of a magnitude that might warrant the use of focus groups or a mock trial, be certain to include this as a potential budget cost.

(c)

Litigation Support Services

The use of computer scanning and storage of documents as well as software applications, commonly referred to as automated litigation support (ALS), has increasingly become standard fare in many law offices and courtrooms, particularly for litigators who deal with document intense cases. More and more trial lawyers are relying upon and utilizing computer programs designed for trial use to present, display, and manage multiple documents and exhibits. These ALS programs typically take discovery documents, transcripts, and exhibits, storing them electronically, and provide text search, index, and display/highlighting capabilities. There are outside firms which handled this process at a fee; or attorneys may choose to invest in the appropriate hardware and software to process documents themselves. In either event, counsel should determine whether or not the case, particularly a case with a number of documents, is appropriate for use of such services and, if so, include this in any cost analysis and budgeting for the matter.

§ 3.4

SCHEDULING DISCOVERY EVENTS

Once the discovery needs of the case have been analyzed and costs have been considered and budgeted, counsel should next consider the scheduling of discovery events. The schedule should of course be tailored to fit the case and any “exit strategy” goals. For example, if there is a threshold issue, such as whether the case was filed within the appropriate statute of limitations, counsel for the defense will likely seek to conduct intense discovery on this issue at the outset in the hopes of quickly moving for summary judgment. Similarly, if an attorney hopes to or is considering settling the case quickly, he or she may wish to schedule the deposition of the opposing party or a key witness early in the process. The scheduling of discovery events should be driven and guided primarily by strategic considerations and secondarily by logistic concerns. Counsel must, of course, follow the time periods dictated by the rules and/or by any scheduling orders, and will almost certainly have to work around and accommodate the schedules of opposing counsel, prospective deponents, and perhaps counsel for the deponent. Nonetheless, attorneys should try to formulate and adhere to a discovery schedule that both follows a logical progression and allows for the best, most complete, and most candid disclosure of the facts and testimony. The discussion below seeks to address some of the ways this can be accomplished. 3–15

§ 3.4

§ 3.4.1 (a)

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Develop a Logical Progression of Discovery Prefiling Discovery

In some instances counsel may need to employ the court system to quickly obtain, authenticate, and preserve records and documents or even testimony that may be critical to a potential claim. For example, a client may first approach prospective plaintiffs’ counsel at a time when the statue of limitations is dangerously close, or when the client or a critical witness is leaving the jurisdiction or is close to death. In these instances, counsel may utilize Rule 27 and R.I. Gen. Laws § 9-18-12 to file a miscellaneous petition for perpetuation of testimony. These provisions provide that, on application, a party may seek to have a court grant permission to issue subpoenas and record testimony before suit is filed. The petition is filed with the court clerk and a filing fee must be paid, the same as if filing a complaint. (See Exhibits 3B and 3C, below.) If the judge grants the order, a subpoena may be issued to obtain documents (such as medical records), or permission granted to take the deposition testimony of a critical witness or potential party before suit has been filed. Counsel may thereby quickly obtain and evaluate the records to determine whether or not a viable case exists. Similarly, the patient dying of a terminal disease may have his testimony recorded (preferably on videotape) to preserve critical testimony concerning conversations, pain, and suffering damages, and “put a face on” the client who may no longer be alive by the time the suit is filed, and who therefore may not be available to give deposition or trial testimony. Note, however, that Rule 32 states that depositions may be used at trial “against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof.” (See also R.I. Gen. Laws § 9-18-15: “The deposition, in case of the death of any deponent, his or her of unsound mind, his or her absence from this state, or inability to attend, may be used as evidence in any court in this state against any person who shall have had due notice of the taking of the deposition, his or her heirs, executors, or administrators.”) Accordingly, if the prospective defendant or counsel for same is not given notice, the effective use of such perpetuated testimony is at peril.

(b)

Postfiling

Rule 26(d) states that, “unless the court orders otherwise, methods of discovery may be used in any sequence.” In other words, the rules generally do not require that discovery be conducted in any particular order; nor, except as described below, do they require they be done at a particular time. Nonetheless, in most cases, the most logical course will be to assemble all of the documentary evidence 3–16

CREATING A DISCOVERY PLAN

§ 3.4

and conduct “paper discovery” first before proceeding with depositions. The benefit of this approach is readily apparent: the information obtained from documents produced often helps to focus lines of questioning, and the documents themselves may be used to confront or impeach the witness, refresh his or her recollection, or lead to whole new areas of inquiry, among other things. For plaintiff’s counsel, there are ways to hit the ground running. In the federal court, there is an automatic exchange of information which mandates that documents be produced and witnesses identified. The state court system does not have such automatic disclosure requirements. Nonetheless, the rules do allow for the discovery process to commence immediately. Rule 34 provides that a request for production may be filed and served with the complaint, with production to be made sixty days from the date of service. It is wise to take advantage of this provision and immediately request and obtain those documents which were not freely available by request prior to suit. For example, in a medical malpractice claim against a hospital, plaintiff’s counsel may wish to request production of policies and procedures relevant to the facts of the case, work schedules that identify persons on duty at the time of the incident, original records, and other useful documents. Most attorneys file interrogatories at the outset of the case. Under Rule 33, a party may propound more than one set of interrogatories, provided that the total number of interrogatories propounded is less than thirty. More than thirty interrogatories may be propounded only if a court order is obtained on motion for good cause. Given this flexibility, counsel should carefully consider what types of questions he or she wants to have answered through the filter of opposing counsel (who will invariably assist in the preparation of the answers) and what questions would be better answered at deposition, where there is a greater possibility of receiving a candid answer. For many, the best approach is to limit the initial interrogatories to questions seeking general information, such as names and addresses of witnesses and persons with knowledge, background information on the party, calculations of damages, etc., all of which are questions that will result in better and more complete answers if the attorney is involved. The information obtained from these interrogatory answers can then be used to focus further discovery. Follow-up requests and additional interrogatories should be continually considered as discovery develops, based on additional facts revealed at deposition and through paper discovery and document production. Consider also, when gathering documentary evidence, when to best use the subpoena power to obtain documents and, in particular, when to employ the often useful Rule 30(b)(6) deposition. In many instances, counsel will prefer to first gather all of the information they need from third parties by subpoena, “lock in” a corporate party defendant at a Rule 30(b)(6) deposition, and thereafter confront the opposing party at his or her individual deposition with the documents 3–17

§ 3.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

previously obtained. At times, however, it may be preferable to first depose the party, particularly if you believe that the party will be less candid after opposing counsel has had the opportunity to examine additional evidence obtained through your discovery and educate his or her client before the deposition. Generally speaking, however, it is best to obtain as much of the documentary evidence as you need (and know of) before deposing witnesses. Remember that, absent a court order or agreement of the parties, you will not be able to depose a party or witness again. For this reason, counsel should be reasonably certain that all of the relevant documents necessary to conduct a meaningful and useful inquiry of the deponent are available before noticing the deposition. You should expect that the court will not look favorably upon a request to redepose a witness based upon your need to inquire about a document you could have obtained prior to the first deposition. In all instances, the basic rule of thumb remains the same: you are seeking information that any journeyman news reporter would be trying to find—who, what, when, where, how, and why. All of this information is necessary if counsel hopes to explain the case and argue effectively in front of a judge or jury. If you do not thoroughly understand what happened, there is no chance that a jury will understand or be persuaded by your argument. It is far easier to learn the complete story when a logical, planned sequence of discovery is developed and implemented.

§ 3.4.2

Complying with Court Rules and Case-Specific Orders

In developing a discovery schedule, counsel should be aware of and comply with applicable court orders and rules. For most civil cases, there is no tracking order or schedule. Indeed, until the case is assigned for trial, there are no deadlines dictating when discovery is to commence or close. Certain rules do, however, regulate when certain discovery events may begin: • Pursuant to Rule 33(a), interrogatories may be served after commencement without leave of court except that, if service is made by the plaintiff within sixty days after service of process on the defendant, then leave of court, granted with or without notice, must first be obtained. • As noted above, Rule 34 provides that requests for production may be served with a copy of the summons and complaint; they may be served upon the plaintiff after commencement of the action. • Under Rule 30(a)(2)(B), a plaintiff may not take a deposition prior to the expiration of thirty days after service of process without 3–18

CREATING A DISCOVERY PLAN

§ 3.4

leave of court unless a defendant has sought discovery or the deposition notice contains a certification that the deponent is expected to leave the state and will be unavailable for exam unless deposed before that time. Rhode Island also has on occasion implemented standing orders applicable to certain cases. For example, medical malpractice cases have been subject to a court rule requiring that a scheduling order be entered into setting forth the date on which the parties are to disclose experts and when expert depositions may take place. Additionally, any party may apply to the judge for implementation of a scheduling order setting forth deadlines including dates for expert disclosures and depositions, dates on which discovery is to close, and so forth. As a general rule, however, most cases are not subject to scheduling orders.

§ 3.4.3

Scheduling Depositions and Inspections

When creating and implementing your discovery plan, be mindful of the fact that the scheduling of depositions and other events involving counsel, such as Rule 34 inspections of land, will most likely be problematic. It is often difficult to coordinate and accommodate the schedules of a deponent and two or more attorneys. Accordingly, counsel should generally try to reach agreement regarding deposition scheduling. Try to be flexible; remember that opposing counsel will be less inclined to accommodate your scheduling conflicts if you do not accommodate him or her. Rather than simply noticing a deposition, contact opposing counsel in advance and get potential alternative dates, then find one you all can agree upon. This will save time and effort on everyone’s part. If however, you find opposing counsel does not provide you with dates, or continually cancels depositions despite your best efforts, it would be wise to file a motion to compel attendance at deposition. If the motion alone does not cause the deposition to go forward, a court order mandating completion of a deposition by a date certain will. In all instances, consider the following: • How many counsel are involved and what are their schedules? • Can the deposition be handled in another way (e.g., subpoena of records without the need for testimony) or by someone else in the firm? • Are there likely to be logistical problems with the witness? For example, if the witness being deposed is a professional, or is an

3–19

§ 3.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

out-of-state witness, counsel will almost certainly have to find a number of available times and dates first before thereafter proposing deposition dates to opposing counsel. • Is the witness represented by counsel who will be attending the deposition? Note that this may not be established until after the witness has been subpoenaed and the deposition noticed. • What is the best way to ensure that the witness’s deposition is scheduled to fit within the discovery plan? The last item is often the most difficult to accomplish. There are many instances in which counsel will want to conduct a deposition of a key witness at a point either before or after other key evidence in the case has been developed through discovery or deposition. If a discovery plan has not been developed and the scheduling of key depositions is left to chance based upon everyone’s availability, counsel may lose an opportunity to extract important admissions or candid testimony. For example, an employee or underling may be unwilling to contradict earlier testimony from his or her superior, and may, perhaps even subconsciously, be less clear or emphatic in their recollection of events if that recollection differs from that of their superior. Do not allow the logistical difficulty of scheduling depositions to interfere with the overall plan. Once again, always bear in mind that Rule 26(d) not only provides that methods of discovery may be used in any sequence unless the court upon motion orders otherwise “for the convenience of the parties and in the interests of justice,” it further expressly states that “the fact that a party is conducting discovery, by deposition or otherwise, shall not operate to delay any other party’s discovery.” Just because you “asked first” does not mean that your opponent has to wait on discovery until the deposition you noticed goes forward, or the documents you requested are provided. Counsel may allow that the first noticed deposition gets priority as a matter of courtesy (with the expectation that opposing counsel will reciprocate); however, the rules do not require this. If you cannot reach an agreement with opposing counsel, you may wish to file a motion to compel deposition (or motion for protective order or for a scheduling order) and seek to persuade the court that your deposition should go first in “the interests of justice.” Obviously, the “I asked first” argument without more will not be a persuasive to the court, and an opponent’s practical logistical/scheduling arguments will often trump strategy concerns. The best approach is to therefore plan ahead: notice your depositions in order but be certain to allow for cancellations and rescheduling. Where there are a number of depositions that need to be scheduled, particularly where both parties are planning to do expert depositions, consider applying to the court for an agreed upon (or court imposed, if no agreement can be reached) scheduling order. 3–20

CREATING A DISCOVERY PLAN

§ 3.4.4

§ 3.4

Dealing with Requests for Extension of Time

Counsel may on occasion need to request an extension of time to answer discovery requests propounded by an opponent, or may be asked to extend this courtesy to opposing counsel. The need may arise because of scheduling difficulties, delays in locating or obtaining documents, or other factors beyond the attorney’s control. Nonetheless, a good-faith effort to comply with the original response deadline should always be made before any extension is requested. If compliance with the original deadline proves to be impossible, counsel’s request for an extension should be reasonable, generally no more than an additional thirty days. Counsel requesting an extension should be willing to grant a similar request by opposing counsel, and should consider automatically offering to extend the time for the opponent to respond to a request which would otherwise be due during the requested extension. For example, a defendant whose expert interrogatory answers are due October 1 requesting a thirty-day extension of time to respond to November 1 should offer to extend plaintiff’s due date for expert disclosures from October 15 to November 15. Of course, if a request for extension of time will truly be prejudicial to your client’s interest, you cannot and should not agree to an extension. Likewise, if opposing counsel takes unfair advantage of an accommodation and continues to request additional extensions that are unreasonable or unduly delay the discovery process, it would be prudent to include a stipulation that no further extensions will be given. Generally, however, it is best to be reasonable and flexible, within limits. Accordingly, make certain your client knows (1) that reasonable requests for extensions may be necessary for both parties; and (2) that taking a hard line approach by unreasonably refusing to grant extension requests may be counterproductive or may even backfire if your client suddenly finds that he or she needs to request an extension. In sum, make every effort to comply with original deadlines, try to keep requests for extensions at a minimum and reasonably short, and be reasonable but firm in accommodating opposing counsel’s requests for extensions. In this way, counsel can keep the discovery process moving smoothly and in a civil manner.

§ 3.4.5

Moving to Amend Scheduling Order Deadlines

In cases where there are scheduling orders or pretrial orders proscribing discovery closure and other deadlines, counsel may often find that closure dates or disclosure dates need to be amended. In those cases in the Superior Court where there are pretrial orders containing discovery closure deadlines, the orders themselves will often contain language describing how and under what circumstances 3–21

§ 3.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

deadlines may be amended.(e.g., “upon motion by order of the court for good cause shown or by agreement of the parties”). Similarly, cases in which scheduling orders have been entered often contain similar language. Amendment or modification of the schedule requires a motion. (See Exhibit 3D). As a general rule, the likelihood and ease with which a scheduling order may be amended is directly related to the trial date: the closer the case is to trial, the more difficult it will be to amend a scheduling order either by agreement or upon motion to the court. It therefore stands to reason that the sooner counsel anticipates there may be a problem complying with the scheduling order, the better chance he or she has of successfully reaching an agreement to amend the scheduling order and/or of convincing the court to modify or amend the order. If deadlines cannot be met for reasons beyond the control of counsel, (for instance, unavailability of witnesses, extreme difficulty in scheduling out-of-state depositions, unforeseen factual or legal developments) counsel can consider requesting not only an amendment to the scheduling order, but also a continuance of the trial date. In all instances, the attorney requesting the amendment and/or continuance should be able to demonstrate to the court that the parties have been working diligently on completing discovery and that the request is born of necessity rather than a lack of preparation.

§ 3.4.6

Supplementation of Discovery Responses

The Rhode Island Superior Court Rules of Civil Procedure provide that parties have a duty to seasonably update and supplement discovery responses. Rule 33(c) describes this duty as it specifically applies to interrogatory answers. Yet Rule 26(e) also makes clear that the duty to supplement extends to all discovery responses. Specifically, that Rule designates and requires the responding party to supplement or amend a prior discovery response in five specific situations: • With respect to questions which address the identity and location of persons having knowledge of discoverable matters. Super. R. Civ. P. 26(e)(1)(A) • With respect to persons expected to be called as expert witnesses at trial, the subject matter on which he or she is expected to testify, and the substance of the person’s testimony. Super. R. Civ. P. 26(e)(1)(B) • When the responding party obtains information and, based upon that information, knows that the original response was incorrect when made. Super. R. Civ. P. 6(e)(2)(A) 3–22

CREATING A DISCOVERY PLAN

§ 3.4

• When the responding party subsequently obtains information that the prior response, though correct when made, is no longer true, and the circumstances are such that a failure to amend the response is in substance a knowing concealment. Super. R. Civ. P. 26(e)(2)(B) • When the discovering party makes a new request for supplementation prior responses anytime prior to trial. Super. R. Civ. P. 26(e)(3). The duty may also arise where the court enters an order requiring supplementation, or where the parties agree among themselves to supplement. Super. R. Civ. P. 26(e)(3). Inasmuch is the first two Rules (Rule 26(e)(1)(A) and (B)) require supplementation only if the original discovery request(s) directly sought the information, counsel should make it a practice to always serve interrogatories requesting identification of persons having knowledge of the relevant events and expert interrogatories at the outset of the case. Even if counsel prefers to refrain from posing a full set of interrogatories in advance of deposition for strategic reasons, these questions should be asked. By doing so, the attorney ensures that these critically important discovery inquiries are not overlooked or posed too late. If the initial response discloses nothing, the burden has still been shifted to the opposing party to timely divulge any new information in advance of trial or risk being precluded from calling witnesses who have not been timely disclosed. The third and fourth Rules listed above require supplementation if and when the respondent acquires new information that the initial response was either originally incorrect or is now no longer accurate. Keep in mind that the knowledge in question is not only that of the client; rather, the knowledge of the attorney is entirely attributable to the client for purposes of supplementing answers. The fifth part of the Rule, which requires the respondent party to supplement at the specific request to the discovering party, should prompt and remind prudent counsel to file a motion or requests to supplement as a matter of course sufficiently in advance of trial so as to avoid any surprise. Once the client or attorney does obtain additional information triggering a duty to amend, supplementary information and answers must be provided “seasonably.” Although there is no real guidance as to what is or is not a seasonable response set forth in the rules, common sense dictates that prior interrogatory deposition answers must be supplemented as soon as reasonably possible after the new information is obtained. Not only will this practice avoid undue prejudice to the discovering party, it may avoid other problems, such as accusations by opposing counsel of dilatory tactics and requests for or the actual imposition of sanctions. 3–23

§ 3.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Finally, Rule 33(c) further specifically requires that whenever the party furnishing the answers “subsequently shall obtain information which renders such answers incorrect or incomplete,” amended answers are to be served within a reasonable time thereafter, but not later than thirty days prior to commencement of trial. (This replaces the former Rule and long-standing practice which had required supplementation no less than ten days in advance of trial). Once again, this Rule may be superseded by scheduling orders requiring earlier disclosure of expected expert testimony. Moreover, in light of the relaxed rules allowing for expert depositions without a prior court order, thirty-day advance disclosure may not provide enough time to allow for the scheduling of expert depositions in advance of trial. Counsel should bear this in mind when determining and supplying answers concerning which experts are expected to testify at trial.

§ 3.5

CONCLUSION

In order to craft an effective discovery plan, counsel needs to analyze what information is available and what information is needed, and thereafter develop a strategy in which discovery events are carefully planned and timed so as to maximize the potential for uncovering facts and the truth. Careful consideration and regard for the rules and factors described above should aid counsel in developing such a plan that will best meet the client’s goals.

3–24

CREATING A DISCOVERY PLAN

EXHIBIT 3A—Sample Rule 30(b)(6) Deposition Notice STATE OF RHODE ISLAND PROVIDENCE, SC.

SUPERIOR COURT

[Name] , Plaintiffs vs.

C.A. NO.:

[Name] , Defendant NOTICE OF RULE 30(b)(6) DEPOSITION Please take notice that, pursuant to Rhode Island Rules of Civil Procedure 30(b)(6), the Plaintiffs in the above captioned matter will take the deposition of [name of corporation or business entity] through the person or persons designated by said corporation to testify as to all matters known or reasonably available to the corporation concerning and/or relating to: a)

The criteria established by [name of corporation or business entity] for qualifications of employees in accordance with [document name], a copy attached as Exhibit “A.”

b) [subject description] c)

[subject description]

a.m. on at the offices The deposition will commence at before a Notary Public in and for the State of of Rhode Island, or before some other officer authorized by law to administer oaths. The oral examination will continue from day to day until completed. You are invited to attend and cross-examine. Plaintiffs, By and through their attorney,

3–25

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

CERTIFICATION I, the undersigned, hereby certify that a true and accurate copy of the within was mailed, postage pre-paid, on the

3–26

day of

to

-

CREATING A DISCOVERY PLAN

EXHIBIT 3B—Sample Miscellaneous Petition to Produce Records STATE OF RHODE ISLAND PROVIDENCE, SC.

SUPERIOR COURT

IN RE:

C.A: NO:

[Clients’ name]

PETITION UNDER RULE 27 OF THE RHODE ISLAND RULES OF CIVIL PROCEDEURE The within is a Petition under Rhode Island Rule of Civil Procedure 27 to perpetuate testimony. Petitioner states as cause: 1.

Petitioner is a resident of the State of Rhode Island.

2.

Petitioner expects that she may be a party to an action cognizant in this Court but is presently unable to bring or cause the action to be brought as Petitioner is awaiting receipt and review of the medical documentation and records pertaining to said potential claim.

3.

Denial of this Petition to perpetuate testimony would result in a failure of justice, as Petitioner requires copies of the medical records to properly evaluate any potential claim.

4.

Petitioner seeks and requests the issuance of a Subpoena Duces Tecum requesting the medical records of [Clients’ name] from her medical providers including, but not limited to _____________ Hospital, _________ Hospital, Dr. __________, and other treating physicians and hospitals.

WHEREFORE, Petitioner respectfully request this Honorable Court grant the within Petition to permit the issuance of Subpoenas for medical records for [Clients’ name] from her medical providers, including those listed above. Petitioner, By her Attorneys:

3–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

3–28

CREATING A DISCOVERY PLAN

EXHIBIT 3C—Sample Miscellaneous Petition to Perpetuate Testimony STATE OF RHODE ISLAND PROVIDENCE, SC.

SUPERIOR COURT

IN RE:

C.A: NO:

[Clients’ name]

PETITION FOR PERPETUATION OF TESTIMONY UNDER RULE 27 Now comes Petitioner, [Client’s name] and hereby moves this Honorable Court under Rhode Island Rule 27 to perpetuate testimony. As grounds therefore, Petitioner states: 1.

Petitioner considering and investigating a potential claim;

2.

Petitioner has terminal cancer;

3.

Petitioner seeks to perpetuate his factual testimony by way of video deposition.

4.

Petitioner will notify potential defendant [Defendant’s’ name], of the date and time of the video deposition so that he may have the opportunity to cross examine Petitioner as he deems fit and necessary;

5.

Such perpetuation of testimony is proper in order to avoid a failure or delay of justice.

WHEREFORE, Petitioner respectfully request that his petition be granted and that this Court issue an order permitting the taking of the video deposition of Petitioner, [Client’s name] at a convenient date and time in the month of ________, ____, with notice to [Defendant’s’ name] Petitioner, By his attorneys,

3–29

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

3–30

CREATING A DISCOVERY PLAN

EXHIBIT 3D—Motion to Modify Scheduling Order STATE OF RHODE ISLAND PROVIDENCE, SC.

SUPERIOR COURT

[Name] , Plaintiffs vs.

C.A. NO.:

[Name] , Defendant MOTION TO MODIFY SCHEDULING ORDER Plaintiffs in the above-captioned matter hereby move this Honorable Court for an Order modifying the existing scheduling order. As grounds therefore, Plaintiffs state that there is still outstanding discovery which needs to be completed. Most significantly, Plaintiffs’ subsequent treating physician, [witness name], has yet to be deposed. Diligent efforts have been made to effect timely service of a subpoena so as to compel [witness name] attendance at a deposition; however, this has not yet been successfully accomplished. It is critical that [witness name] be deposed and that counsel have time to conduct any reasonable follow-up discovery thereafter in order to properly prepare the matter for trial. For all the foregoing reasons, Plaintiffs respectfully request that this Honorable Court grant their motion to modify the scheduling order so as to allow for additional discovery to be conducted, with Plaintiffs’ expert disclosures to be made on or before [Date] and Defendant’s expert disclosures to occur on or before [Date]. Defendant is aware of and has no objection to this motion. Plaintiffs, By their Attorney,

3–31

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

NOTICE OF HEARING Please take notice that the within Motion is scheduled to be heard on the __ of ___ at 9:30 a.m. or as soon thereafter as it may be heard.

CERTIFICATION I, the undersigned, hereby certify that I mailed a true and accurate copy of the within interrogatories regular mail, postage pre-paid on the _____ day of ___________________, ___ to: [Counsel]

3–32

CHAPTER 4

Selected Case Investigation Techniques Armando E. Batastini § 4.1

Introduction .......................................................................... 4–1

§ 4.2

Conducting Client Interviews ............................................. 4–2 § 4.2.1

§ 4.2.2

Steps to Take in Effective Client Interviews ......... 4–2 (a)

Learn to Listen ............................................. 4–2

(b)

Encourage Your Client to Tell the Story....... 4–3

(c)

Follow a Chronological Sequence................ 4–3

(d)

Use Common Sense and Ask Pointed Questions ........................................ 4–3

(e)

Find Out Who the Other Players Are ........... 4–3

(f)

Find Out What Documents or Electronic Records Exist ............................................... 4–4

(g)

Identify Legal Issues .................................... 4–5

(h)

Recognize the Client’s Need to Vent............ 4–5

(i)

Size Up the Client as a Possible Witness ..... 4–5

(j)

Size Up the Client as a Decision Maker....... 4–6

(k)

Assess External Factors ............................... 4–7

(l)

Have a Postinterview Game Plan ................. 4–7

Special Issues in Initial Client Contacts................ 4–7 (a)

Representation of Multiple Clients .............. 4–7

(b)

Privilege Issues Relating to Corporate Clients ..................................... 4–9

4–i

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

§ 4.3

§ 4.4

§ 4.5

Obtaining Witness Statements ...........................................4–10 § 4.3.1

Identifying Potential Witnesses............................4–10

§ 4.3.2

Interview Preparation...........................................4–10

§ 4.3.3

Interview Process .................................................4–11

§ 4.3.4

Use of Witness Statements...................................4–13

§ 4.3.5

Ex Parte Contact with Employees of a Corporate Opponent......................................4–15

Using Investigators and Other Resources .........................4–18 § 4.4.1

Internet Resources................................................4–18

§ 4.4.2

Private Investigators .............................................4–19 (a)

Services Provided .......................................4–19

(b)

Choosing an Investigator ............................4–20

(c)

Work Product Issues ...................................4–21

Beyond Zealous Advocacy: An Attorney’s Responsibility ......................................................................4–21

EXHIBIT 4A—Checklist for Client Interviews..............................4–23

4–ii

CHAPTER 4

Selected Case Investigation Techniques Armando E. Batastini

Scope Note This chapter discusses a series of informal investigative techniques used in civil litigation. It begins with an analysis of client interviews, with attention paid to interviewing techniques and identifying the various types of information a client may be able to provide. The chapter next discusses witness statements, including procedures to follow in arranging for and conducting interviews, the subsequent use of statements in the course of litigation, and the ethics issues relating to ex parte contact with employees of a corporate opponent. The chapter concludes with a discussion of investigators and Internet resources. Included as an exhibit is a checklist for client interviews.

§ 4.1

INTRODUCTION

It is certainly essential for litigators to master the full panoply of formal discovery, from written discovery to depositions, to physical and mental examinations. A more obvious form of investigation, however, is equally important. Although we, as lawyers, have transformed the word “discovery” into a term of art, it is important to realize that Rules 26 through 37 of the Rhode Island and Federal Rules of Civil Procedure are not the only ways to “discover” information concerning your case. A better analytical approach is to consider the word “discover” in its Webster’s Dictionary sense: “to find out; learn of the existence of.” Effective investigation of your case should therefore include both formal and informal means of obtaining relevant information. As a starting point, it is useful to think in terms of the possible sources of information. One can then assess whether formal discovery under the Rules of Civil Procedure is the best way to get that information, or whether informal means

4–1

§ 4.1

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

will be sufficient. This chapter will be limited primarily to the role of informal means of discovery. There are three general categories of information sources: internal information sources, external information sources, and the opposing party. Although the third category will generally require formal discovery, the first two categories can often be covered through informal investigation techniques, including client interviews, witness statements, and the use of private investigators and other resources.

§ 4.2

CONDUCTING CLIENT INTERVIEWS

§ 4.2.1

Steps to Take in Effective Client Interviews

The natural starting point for figuring out what your case is about is with internal information sources, which include your client, your client’s documents and tangible things, and sources affiliated with your client. For example, in the case of an individual, an affiliated information source may be his or her accountant, medical provider, or attorney. In the case of a corporation, those sources would include corporate employees, attorneys, accountants, and consultants. Obtaining information from this source may seem like a simple concept: You have a client. He has a problem. He has been wronged by someone else. Or he has been accused of wronging someone. You talk to him. You find out the facts. What could be so hard about that? Maybe nothing, if you know how to do it. But if you do it wrong or are not thorough enough or persistent enough, you could miss an important fact. That could mean being blindsided at a deposition or at trial. That could mean losing your case—all because you did not know how to interview your own client. To some, interviewing is a natural skill. To most others, effective interviewing in a legal setting is an acquired talent. The following points, reproduced as a checklist in Exhibit 4A, should be kept in mind throughout the interviewing process.

(a)

Learn to Listen

First and foremost, you must put aside your lawyerly tendencies to talk, and learn to listen. As lawyers, we are taught to analyze a situation, form opinions, and express those opinions. Before you can analyze a situation, however, you must know the facts. You are not going to find them if you are the only one doing the talking. 4–2

SELECTED CASE INVESTIGATION TECHNIQUES

(b)

§ 4.2

Encourage Your Client to Tell the Story

Discard any preconceived notions and let the story take you where it will. Encourage your client to tell the story in narrative fashion, in his or her own words. At the same time, be an “active listener.” Your inquiries during the initial portion of the interview should include a considerable number of “what happened next” questions. Interrupt only to get clarification—who a person is, what a term means, how that part of the story connects to the last part. Do not interrupt to show how smart you are. Your goal is to encourage the free flow of information, reining it in only when the story begins to repeat itself.

(c)

Follow a Chronological Sequence

In most instances, a chronological sequence is the best organizational approach. Encourage your client to tell the story “from the beginning” and construct a timeline based on the client’s account.

(d)

Use Common Sense and Ask Pointed Questions

After the first telling, go back over the client’s story. Ask for clarifications. Use your common sense and be more pointed. Do not be afraid to ask tough questions, such as the following: • How does that jibe with what you said before? • Why would the other side have done that? • Why didn’t you react in a different manner? • Do you really remember that or are you just assuming it? • What are the skeletons in your closet? Now is the time to ask every tough question that comes to mind. Your mind is rapidly working to figure out what this situation is all about, and you do not want that analysis to be based on what you are assuming or filling in.

(e)

Find Out Who the Other Players Are

Ask who witnessed or participated in the key events, and go back over names that the client has mentioned. Ask questions like: • Who is that person? 4–3

§ 4.2

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

• What role did he or she play? • Where is he or she now? • Did you part company on good terms? • Can he or she be contacted?

(f)

Find Out What Documents or Electronic Records Exist

Push the client on how documents were maintained and what documents exist. Have the client identify the good ones, and the bad ones. It is better to find out early what “time bombs” exist and whether there is some explanation that justifies them or minimizes their significance. Ask the following types of questions about potentially relevant documents: • Is your client’s position reflected or recorded in any document? • Is your opponent’s position reflected or recorded in any document? • Have any documents been destroyed? When? Why? In the normal course of events? • Does the client have a written document retention or destruction policy? Practice Note In discussing documents with the client, be sure to ask specifically about e-mail and drafts, including electronically-stored drafts. More and more communications, internal and external, are transmitted through electronic media—e-mails, voice mails, text messages, forwarded electronic documents—and less and less reliance is placed on hard copy. Because of the trend away from tangible paper documents and the ease of deletion of electronic information, it is critical that counsel take steps to advise his or her client to preserve that information from intentional or automatic deletion. A real tension exists between the requirements of evidence preservation for litigation on the one hand and the business need to regularly and systematically purge electronic data to preserve storage resources on the other. How this tension will be resolved by rule-makers and the courts will undoubtedly be an evolutionary process that is currently in its infancy. A number of cases—including McAdam v. Grzelczyk, 911 A.2d 255 (R.I. 2006), and Dahl v. Bain Capital Partners, LLC, 2009

4–4

SELECTED CASE INVESTIGATION TECHNIQUES

§ 4.2

U.S. District LEXIS, No. 07-12388 (D.R.I. June 22, 2009)—have addressed these issues, and amendments to Fed. R. Civ. P. 16(b), 26(a), 26(b), 33(d), 34(b), and 37 have a had a significant impact.

(g)

Identify Legal Issues

As your client is talking, try to spot the legal issues that will need to be addressed in the case. Ask yourself questions such as the following: • Was there a contract? • Did the other side interfere with your client’s relationship with someone else? • Were inaccurate statements made? Did your client rely on them? Were they statements of fact or opinion? • What are the elements of damages and are they recoverable? Was there comparative negligence or an intervening cause? Prepare a list of these issues for reference and further development throughout the case.

(h)

Recognize the Client’s Need to Vent

Aside from what you have to accomplish from the legal perspective, recognize your client’s emotional need to vent his or her frustration, anger, or confusion. Practice Note Do not ignore this reality. You are more than a mechanic—you are someone into whose hands another human being has put a very important life issue.

(i)

Size Up the Client as a Possible Witness

Every time you meet or speak with your client, you are given an opportunity to size him or her up as a possible witness. Some questions to consider include: • Can the client focus on the issue under discussion? • Does the client have a tendency to get bogged down in too much unimportant detail?

4–5

§ 4.2

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

• Can the client articulate a position logically and persuasively? • Does the client assume too much about the listener’s knowledge base? • How angry is the client? • Is the client naturally nervous or high-strung? • Does the client appear truthful? • Would you buy the proverbial used car from him or her? Use this assessment to evaluate the strength of your case and identify the tasks that lie ahead to improve the client as a witness.

(j)

Size Up the Client as a Decision Maker

Every time you meet or speak with your client, you are given an opportunity to size him or her up as a decision maker. There are many different types of clients. Some cannot stand the pressure of decision making and want you to relieve them of the burden. Others cannot let go of any decision and will mandate courses of action regardless of your advice. The best clients are the ones that fall in the middle—persons who are willing to • listen to counsel, • consider legal advice in light of their own needs, • take advice on procedural and strategic issues, and • arrive at a rational decision that combines the legal factors with the practical and the financial. The sooner you can determine what type of client you have, the better you can fashion the role you will have to play. Practice Note Be mindful, however, that you have an independent responsibility as an officer of the legal system to act honestly and ethically at all times. There are times when that may mean refusing to do what your client demands and, if he or she is unwilling to accept that, withdrawing from representation (also known as “firing the client”). If litigation has begun and you have entered an appearance, withdrawal may be accomplished only with the permission of the court.

4–6

SELECTED CASE INVESTIGATION TECHNIQUES

§ 4.2

In seeking that permission, you must be careful not to say too much and either prejudice your client or violate your obligation of confidentiality.

Ethics Commentary A lawyer’s obligation is to “act with reasonable diligence and promptness in representing a client.” R. Prof. C. 1.3. A client’s wishes may conflict with the lawyer’s ethical obligations. In litigation, such conflicts usually arise in the context of frivolous claims (Rule 3.1), unreasonable delay (Rule 3.2), perjury, falsification, or destruction of evidence, and unfairness to the opposing party (Rules 3.3 and 3.4). Depending on the circumstances, a lawyer may elect to or be required to withdraw from the representation. Any withdrawal should be in accordance with R. Prof. C. 1.3, and, where applicable, with Super. R. Prac. 1.5.

(k)

Assess External Factors

Assess what external factors may be at work and ascertain what role they play in the process. Is your client under the gun from other stresses that make his or her attention to the legal matter difficult? Can you interview him or her at his or her place of business without distraction or disruption? If not, move the interview offsite. Be sensitive to these external factors and try to manage the situation to minimize distraction and permit proper focus. Be careful not to overstay your welcome. Be persistent but not a pest.

(l)

Have a Postinterview Game Plan

When you conclude, have a game plan. What is to happen next? What are you going to do? What is the client supposed to do? What is the time frame? Both the client and the attorney should leave the interview with a list of “action items.”

§ 4.2.2 (a)

Special Issues in Initial Client Contacts Representation of Multiple Clients

It is not unusual in a multiple-party case to be asked to represent more than one individual or entity at the same time. Obviously, there will be circumstances—a husband and a wife in a divorce case, for example—where one cannot undertake such representation.

4–7

§ 4.2

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

Practice Note Practitioners should be fully conversant with the conflict of interest provisions set forth in Rules 1.7 through 1.10 of the Rhode Island Rules of Professional Conduct.

The more common example, however, is where you are asked to represent both a corporation and one or more individuals affiliated with that corporation, or more than one individual. See R. Prof. C. 1.13. If the individual in question is the sole shareholder of the corporation, you have nothing to be concerned about. Where the individual is simply one of multiple shareholders or an employee of the corporation, or you are asked to represent more than one individual, you must undertake an inquiry to determine whether you can ethically undertake that representation. Rule 1.7(b) of the Rhode Island Rules of Professional Conduct provides as follows: [A] lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. There are certainly situations where no impermissible conflict exists and dual representation is allowed. Recognize that you have identical ethical obligations to both clients. If your analysis is that the representation is permissible, however, there are certain precautions that you should consider taking. First, you might consider recommending to one or both of the potential clients that they consult with their own attorneys on the question of whether there is a conflict and whether they should be represented separately. While this may seem like overkill, if a problem were to arise in the future (for example, a judgment against one client and not the other), the independence of your initial advice as to whether a conflict existed and how you subsequently handled the case could be questioned.

4–8

SELECTED CASE INVESTIGATION TECHNIQUES

§ 4.2

Second, as part of the required consultation and consent, you should consider obtaining that consent in writing from both parties. When coupled with the suggestion to seek independent advice on the conflict issues, written consents can provide some measure of protection. You should also consider whether to use a joint representation agreement that includes such consents. Third, even if there appears to be no conflict at the present time, that does not preclude one arising in the future. In your joint representation agreement, you should anticipate what happens to your role if such a conflict does arise. In this regard, your joint representation agreement may provide for your withdrawal from the representation of one client and that client’s consent to your continued representation of the other. This may provide protection in most instances, although in most situations it may not be permissible to continue to represent either client. See R. Prof. C. 1.7 cmt. 2; R. Prof. C. 1.9. Fourth, a potentially ticklish situation may arise in the context of settlement discussions. For example, if you are representing two plaintiffs jointly and the defendant proposes a gross settlement figure without allocation between the two plaintiffs, you must determine whether or not you can properly participate in how that amount is to be apportioned. There may be two courses of action appropriate in this scenario. The first is to insist that the defendant make separate proposals to each plaintiff, which you can then evaluate independently. If the defendant, for whatever reason, is unwilling to do that, the wisest course of action may require that you withdraw from representing either client. Ethics Commentary If there is an actual conflict—if the parties’ interests are adverse—it is required that the attorney withdraw from representing either.

(b)

Privilege Issues Relating to Corporate Clients

When one is representing an individual, the attorney-client privilege issues are pretty straightforward. With some unusual exceptions, any discussions between you and your client dealing with legal issues will be privileged and protected against discovery by your opponent. This privilege cannot be waived by you; it can be waived only by the client. The application of the privilege becomes a bit more complicated when your client is a corporation. This complication arises when your discussions stray from matters related to legal issues into matters pertaining to business affairs. The attorney-client privilege applies only when the client is looking to the attorney for legal advice. When the attorney’s advice is sought on business issues unrelated

4–9

§ 4.2

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

to legal interests or legal rights, the privilege does not shield those conversations. You should be aware of this when interacting with your corporate client.

§ 4.3

OBTAINING WITNESS STATEMENTS

§ 4.3.1

Identifying Potential Witnesses

Potential witnesses come in all shapes and sizes. They may be friendly, hostile, cooperative, reluctant, near, far, important, or peripheral. Some may have a language barrier. Some may have their own agendas. Once you have decided who the potential witnesses are, you should start the sorting process. First, separate your potential witnesses into three categories: • those who are essential to speak with, • those who clearly need not be spoken with, and • those who fall somewhere in between. You should then discuss with your client the value to be gained from speaking with each group, having the case budget in mind, and determine which witnesses you should approach. Within this group, you should determine whom to depose and whom to approach informally. As described more fully below, this analysis includes an assessment of the trustworthiness of the witness and, again, your budget.

§ 4.3.2

Interview Preparation

Once you have identified the witnesses with whom you are going to attempt to speak, you should prepare for that interview before making the initial contact. Although your initial contact may lead to a meeting or a subsequent telephone conversation, in many instances, your first contact may be your best or only chance to speak with that person. Practice Note Sometimes witnesses are willing to speak with you if you catch them by surprise, but if they know you are on their trail, they may place obstacles in the way of your getting a second contact. You should, therefore, have thought about and scripted, or at least outlined, your interview before making that first contact.

4–10

SELECTED CASE INVESTIGATION TECHNIQUES

§ 4.3

What should that preparation include? From your earlier efforts in the case, you should know • the role you believe this witness to have played; • the documents he or she may have prepared, received, or reviewed; • his or her relationship with other participants; and • whether he or she has any potential to gain or lose from the disposition of the case. These clues, however, should be merely starting points and not blinders that prevent your obtaining all of the relevant information that the witness has. As with your interview of your own client, listen carefully to what the witness is saying so that you can pursue leads to other potentially meaningful facts, witnesses, or documents.

§ 4.3.3

Interview Process

Assuming you have identified certain witnesses to contact informally, you must now determine how to undertake that interview. Keep in mind that your conversations with a third-party witness are not privileged and are discoverable. Ask yourself the following types of questions: • Is this a person who needs to be met with personally and handled with kid gloves? • Can the witness’s agenda be identified? • Do you need to isolate the witness from interference or distractions from the witness’s own life or from other persons involved in the case? • Is an interpreter necessary and, if so, who should be chosen? (Be wary of any friends or relatives whose personal agendas may color the “translation.”) • Are there biases that need to be addressed?

4–11

§ 4.3

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

Practice Note Throughout this process, you must be aware of your ethical obligations in dealing with unrepresented individuals. Rule 4.3 of the Rhode Island Rules of Professional Conduct provides that [i]n dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct that misunderstanding. In addition, a lawyer cannot give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, “if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.” R. Prof. C. 4.3(b).

Sometimes a witness needs some prodding to cooperate. Many times, simply keeping a reluctant witness talking without directly confronting his or her reluctance will accomplish your goal of obtaining the information you seek. With other witnesses, you can appeal to their sense of fairness or desire to help others. Some witnesses may require you to take a firmer hand by suggesting that their reluctance may leave you no choice but to compel their attendance with a subpoena for a deposition. Practice Note Be careful in such an exchange that the witness does not conclude that speaking with you is a quid pro quo for your agreement not to depose. After speaking with the witness, you may decide that a deposition is essential to lock in the testimony. While the witness certainly could not legally or practically ignore a validly issued subpoena, the result may be a hostile witness whose testimony becomes unfavorably shaded.

Ethics Commentary Any knowing misrepresentation to the witness regarding future deposition obligations, of course, would constitute a violation of R. Prof. C. 4.1 (“In the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person. . . .”).

In dealing with nonparty witnesses, the saying that “one gets more flies with honey than with vinegar” could not be more apropos. It is therefore usually to

4–12

SELECTED CASE INVESTIGATION TECHNIQUES

§ 4.3

your benefit to be extremely accommodating, whether it be in meeting location or meeting time (obviously, within reason and within your budget). What if the witness refuses to speak with you without being paid? Certainly, if the witness is located some distance away, it is appropriate to pay the witness’s out-of-pocket travel expenses. Setting aside expert witnesses for whom a different set of rules generally applies, in certain circumstances it might also be appropriate to pay a reasonable sum to compensate the witness for his or her time. Try to avoid this type of payment because it can be used by your opponent to suggest that the witness is not credible and that you paid for his or her testimony. This possibility is heightened if you pay a sum disproportionate to the fair value of the witness’s time. If you are faced with a witness who is attempting to extract an unreasonable sum from you, chances are you are better off steering clear of informal contact with the witness and simply proceeding with a deposition.

§ 4.3.4

Use of Witness Statements

As discussed above, a tactical choice must be made as to whether that first contact is informal or by deposition. A statement made by a third party, whether it be at a deposition or on the telephone with you, can be important to your case, but only if the witness repeats it at trial or you have it in a form that can be used at trial. If the statements you get are favorable, obviously you would like to use them at trial. If the witness takes the stand and repeats them, terrific. Suppose, however, the witness takes the stand and cannot recall what he or she told you. Worse yet, suppose he or she changes the statement to something unfavorable. With respect to the forgetful witness, you can try to impeach his or her testimony by reminding him or her of your conversation. This is not a good approach. First, you risk incurring the wrath of the trial judge, who may openly question what role you are playing—counsel or witness. Your attempts to impeach may in any event be unsuccessful. With respect to the recanting witness, you can try the same approach. However, with respect to witnesses that you have called, there are certain restrictions on impeaching your own witness, and those efforts will likely undermine the credibility of that witness and your case. There are steps that can be taken, however, that may diminish the chances of it occurring, or at least soften its negative impact if it does. For example, reducing a witness’s statements to writing and obtaining his or her signature on that written statement verifying that it is accurate often will be all the deterrent that you need to avoid the 180-degree turn. Obtaining

4–13

§ 4.3

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

such a statement gives you an outwardly credible document with which to refresh a forgetful witness’s memory. Practice Note Recognize that written witness statements may be discoverable. While you may be able to successfully assert a work product objection, when deciding whether to reduce statements to writing you should assume that you will be required to produce them. If the claim involves an action for personal injuries, and the witness is an adverse party, be sure the witness receives a signed copy of his or her statement within thirty days of signing. The statement can otherwise be deemed inadmissible as per R.I. Gen. Laws § 9-19-31.

With a witness from whom you receive strong vibrations of unpredictability, you may want to proceed directly to a deposition. The formality of the deposition process creates a powerful deterrent against a change of heart on the witness stand. With either approach, you have the favorable statement in a form that can be used for effective impeachment if the witness recants and is called as a witness by the other side. If the statements you get are unfavorable, what do you do with them? Your first instinct may be to cross your fingers and hope that your opponent does not find out (recognizing that fulfillment of your discovery obligations may result in your opponent finding out). That can be a risky approach. If the witness is an obvious one or your initial round of written discovery has revealed your opponent’s awareness of this witness, you have no real choice but to fully explore what that witness has to say. This will allow you to lock in those statements so that they will not get worse at the time of trial. It will also enable you to probe for the means to attack the damaging testimony. Although this probing can in theory be done informally, followed by reducing the witness’s statements to a document to be signed by him or her, it can be extraordinarily difficult to accomplish. In many cases, your best approach is to take a formal deposition. Practice Note Prompt investigation is critical. Virtually all of the major civil courts establish a certain schedule or time limitation for the completion of discovery. That window of time should be evaluated, and the case investigation planned out, so that formal discovery can be undertaken well before the eleventh hour.

4–14

SELECTED CASE INVESTIGATION TECHNIQUES

§ 4.3.5

§ 4.3

Ex Parte Contact with Employees of a Corporate Opponent

A particularly nettlesome area of factual investigation arises when a party seeks to speak on an ex parte basis with present or former employees of a corporate opponent. As a general matter, “the Rhode Island Rules of Civil Procedure do not purport to delineate the only methods of pretrial discovery by which information pertinent to the litigation may be obtained, nor do they prohibit ex parte interviews.” Lewis v. Roderick, 617 A.2d 119, 122 (R.I. 1992). Personal interviews with witnesses are an accepted, informal method of ascertaining the facts needed to litigate a case, and they favorably reduce the time and expense of trial preparation. Lewis v. Roderick, 617 A.2d at 122. Contact with current and former corporate employees is also governed by the Rhode Island Rules of Professional Conduct. The Rhode Island Supreme Court has established an Ethics Advisory Panel to issue opinions on matters of professional conduct. See R. Prof. C. 9.1. The Ethics Advisory Panel has the authority to interpret the Rules of Professional Conduct upon the request of any lawyer concerning a proposed action and its ethical propriety. Attorneys are not required to follow the panel’s advice, but “[a]ny lawyer who acts in accordance with an opinion given by the panel shall be conclusively presumed to have abided by the [Rules] of Professional Conduct.” R. Prof. C. 9.1. The Ethics Advisory Panel publishes its opinions, and they are currently available at http://www.courts.ri.gov/supreme/ethics/defaultethics.htm. Rule 4.2 of the Rhode Island Rules of Professional Conduct forbids ex parte communications by a lawyer with a person whom he or she knows to be represented: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” The Ethics Advisory Panel has interpreted Rule 4.2 to preclude opposing counsel from contacting an opposing party’s insurance carrier. See Ethics Advisory Panel Opinion Nos. 96-14 (July 11, 1996), 93-33 (Aug. 25, 1993). An attorney is also prevented from contacting a corporation’s in-house counsel if the corporation has retained outside counsel. See Ethics Advisory Panel Opinion No. 94-81 (Feb. 9, 1995). However, counsel may contact an opposing party if specifically authorized by law or promulgated regulation. See Ethics Advisory Panel Opinion No. 97-14 (July 10, 1997) (allowing the presentment of a position paper authorized

4–15

§ 4.3

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

by law, but precluding the presentment of extraneous materials such as a substantive cover letter). It is also interesting to note that In re Egbert, 184 F.R.D. 26 (D.R.I. 1999), provoked sharp disagreement over the scope of Rule 4.2. Under the majority’s view, “Rule 4.2 does not erect an absolute ban on communicating with a represented person. . . . The very first modifying phrase, ‘in representing a client,’ limits the prohibition to attempts by the offending lawyer, in representing his or her own client, to drive wedges between other lawyers and clients.” In re Egbert, 184 F.R.D. at 30 (Lisi, J.) (emphasis in original). By contrast, the Egbert concurrence read the phrase “in representing a client” to prohibit “communications with a represented party that occur while the lawyer is representing a client who has an interest in the matter discussed or during the course of that representation.” In re Egbert, 184 F.R.D. at 31 (Torres, J.) (emphasis in original). Under Judge Torres’ view, Rule 4.2 prohibits contact with any represented person, “including those whose interests are apparently not adverse to the existing client of the lawyer.” In re Egbert, 184 F.R.D. at 31. To preserve and protect the attorney-client privilege between the corporate party and its own counsel, Comment 7 to Rule 4.2 specifies three types of present employees that opposing counsel may not contact: • present employees who supervise, direct, or regularly consult with the organization’s counsel concerning the matter; • present employees who have the authority to obligate the organization with respect to the matter; and • present employees whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Conversely, with respect to former employees, Comment 7 to Rule 4.2 states, “[c]onsent of the organization’s lawyer is not required for communication with a former constituent.” If the former employee is unrepresented by counsel, Rule 4.3 also governs, and requires that “a lawyer shall not state or imply that the lawyer is disinterested” to an unrepresented person. The attorney must make reasonable efforts to correct the misunderstanding if the attorney knows or has reason to know that the unrepresented person does not understand the attorney’s role in the matter. R. Prof. C. 4.3. The Ethics Advisory Panel interpreted Rule 4.3 in Opinion No. 91-74. The Panel took the position “that the Rhode Island Rules of Professional Conduct do not prohibit attorneys and their agents from conducting ex parte interviews of former 4–16

SELECTED CASE INVESTIGATION TECHNIQUES

§ 4.3

employees of an adverse corporate party.” The Panel noted that “[c]ourts have recognized that Rule 4.2 was not meant to cover a corporate party’s former employees, but is applicable only when a ‘party’ witness is involved.” Ethics Advisory Panel Opinion No. 91-74 (Oct. 30, 1991). When communicating with a present or former employee of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. R. Prof. C. 4.2 cmt. 7. What should counsel unsure of the reach of these rules do? Situations certainly will be viewed on their own unique facts. Those facts include the following: • the issues in the case, • the wrongful conduct complained of, • the role of the individual in the conduct at issue, • the position of the individual within the corporation, • the supervisory responsibilities of the individual generally and with respect to the acts complained of, and • the managerial responsibilities of the individual in matters pertaining to the litigation. Before any conclusions can be drawn, counsel must assess how much knowledge he or she has about the witness to be interviewed. If counsel is unsure of the facts surrounding the corporate employee’s position, responsibilities, or role in the facts of the underlying dispute, the safe course would be to first attempt to fill the gaps through written discovery or depositions of other corporate officials. If the analysis remains inconclusive, counsel is left with three choices: • throw caution to the wind and make the ex parte contact; • forget the idea and proceed with a deposition of the corporate employee; or • write to the witness advising him or her of the right to counsel and requesting permission to contact him or her if unrepresented. Should you then communicate with the witness and learn that you are encroaching on the rights of the organization, you should immediately forgo further contact, and advise the witness that you can communicate no further with him or her.

4–17

§ 4.3

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

In all events, memorialize your activities, and keep a memorialization of the substance of any conversations you may have had. Conversely, what can the corporate party do to attempt to prevent overreaching by opposing counsel? With respect to current employees, the most effective solution would be to notify all employees with any involvement in the matter that they will be provided legal counsel and that they should not speak with any other attorney. As with any other instruction, the employer would be entitled to enforce this with appropriate discipline in most instances. The employer must recognize, however, that any discipline arising from an employee’s ignoring such an instruction may be argued to be illegal retaliation for “whistle blowing” if some strong public policy is implicated. With respect to former employees, the employer can make the similar offer of legal counsel and request that the former employee not speak to opposing counsel without the employer-paid lawyer present. With respect to a former employee as opposed to a current employee, clearly the employer has no enforcement mechanism. An alternative approach may be to seek a protective order from the court.

§ 4.4

USING INVESTIGATORS AND OTHER RESOURCES

There are a variety of other resources available to you in the investigation of your case. One of the most valuable is at your fingertips—the Internet. Information that you can gather through the Internet can serve as a valuable basic source of information.

§ 4.4.1

Internet Resources

If your opponent is a corporation of any significant size, it is almost certain to have its own Web site. The information on this Web site can give you some good historical data and clues. It can also provide you with a general background on your opponent that your client may not otherwise have. In addition, all publicly traded companies are required to file a variety of forms with the Securities and Exchange Commission, which are accessible through that agency’s Web site at http://www.sec.gov. Conducting an “EDGAR” search through the SEC’s Web site will bring you to the target company’s SEC filings. Often the most beneficial of these filings is the company’s Form 10-K, which

4–18

SELECTED CASE INVESTIGATION TECHNIQUES

§ 4.4

provides an overall description of the business, its activities, its positioning within the market, its locations, any recent activities, and financial information. All significant newspapers also have Web sites with some ability to search archival information, either for free or at some nominal cost. Prominent local examples include the Providence Journal (http://www.projo.com), and Rhode Island Lawyers Weekly (http://www. rilawyersweekly.com). Smaller market newspapers, such as the Warwick Beacon (http://www.warwickonline.com), the Pawtucket Times (http://www.pawtuckettimes.com), the Woonsocket Call (http://www.woonsocketcall.com), the Westerly Sun (http://www.thewesterlysun .com), and the Valley Breeze (http://www.thevalleybreeze.com), may have similar search capabilities. This is by no means an exhaustive list of local newspapers that can be valuable resources. This barely scratches the surface of the wealth of information available through the Internet. A creative use of search terms may just find you the needle in the haystack that you are looking for.

§ 4.4.2

Private Investigators

A more traditional form of assistance is the utilization of a private investigator. Investigators can be valuable in locating missing witnesses, interviewing reluctant witnesses, investigating assets, and even performing surveillance if the case warrants it. Be mindful, however, that the quality of persons holding themselves out as investigators varies widely and that investigators can be very costly. You should never engage an investigator without first discussing the benefit and the cost with your client.

(a)

Services Provided

Location of Witnesses In many instances, you may know the name of a witness but do not have an accurate address or a telephone number and have not been successful using the local telephone book or Internet locator services such as Whowhere (http://www.whowhere.com), Switchboard (http://www.switchboard.com), AT&T AnyWho (http://www.anywho.com), or InfoSpace (http:// www.infospace.com). An investigator can often successfully locate a current address and telephone number for that witness.

4–19

§ 4.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

Tracking Down Reluctant Witnesses Even if the address and telephone number that you have for a witness is current, some witnesses will avoid you at all costs. In such instances, it may be a better value to your client to hire a persistent investigator who will track down the reluctant witness and get him or her to speak.

Witness Interviews For the reasons set forth above, you may decide you need someone to testify as to statements by the interviewee. Obviously, if you conduct the interview, it will be difficult for you to testify about your conversation with that witness. See R. Prof. C. 3.7. If an investigator conducts the interview, however, his or her testimony may be available at trial. Practice Note Your level of interaction with the investigator in the preparation stage will depend on your past experience with the investigator and your level of confidence in his or her ability. With some, you may need only describe the facts of your case and the anticipated involvement of the witness for your investigator to know what questions to ask. With others, you may want to prepare more fully, even going so far as to provide your investigator with a written script.

Asset Investigation Many investigators provide asset investigation services. Whether you are considering taking a case in the first place or attempting to collect a judgment that you have received, the assets of your opponent may be important information. Practice Note Be wary of asset investigation services that you suspect might be using illegal means to obtain information. Not long ago, a wellpublicized firm was investigated and closed down for doing just that. It does not take much imagination to arrive at a scenario where an individual who believes his or her privacy rights have been violated by an asset investigation firm also sweeps the attorney into that dispute.

(b)

Choosing an Investigator

Choose your investigator wisely. Consider that an investigator who is bonded and insured may be more reputable than one who is not. Be particular in your inquiries, because not all investigators have the same skills and abilities. For 4–20

SELECTED CASE INVESTIGATION TECHNIQUES

§ 4.4

example, one talented in finding missing individuals may not be the best interviewer. One of the best ways to acquire information is to ask other attorneys about the investigators they use.

(c)

Work Product Issues

Generally speaking, the work product of the investigator will be protected from discovery, particularly if you (as opposed to your client) have retained the investigator. Some type of retention agreement reduced to writing will help to evidence this fact. An appropriate precaution is to make sure that your investigator identifies the name of the case and its docket number in any written reports and places a legend such as “protected work product” at the beginning of all such reports and on any of his or her notes. Note, however, that the effect of the legend “privileged work product” or words of similar import do nothing to add to the legal determination of whether the documents will be protected from discovery. An exception to this rule is that a party may obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial if a showing can be made that the party seeking the information has substantial need of the materials and is unable without undue hardship to obtain the substantial equivalent by other means. Super. R. Civ. P. 26(b)(3). This could encompass, for example, photographs taken by an investigator relatively soon after the events at issue. Such a showing might also be made for statements taken from a now-deceased or incapacitated witness.

§ 4.5

BEYOND ZEALOUS ADVOCACY: AN ATTORNEY’S RESPONSIBILITY

A final and extremely important comment must be made. Because informal investigation generally takes place outside the view of the court and the party opponent, it creates a potential opportunity to take advantage of unrepresented or vulnerable individuals. Every attorney should, therefore, embrace an ideal of treating all persons honestly and with courtesy, respect, and professionalism. While we are obligated to advocate zealously on behalf of our clients, we must recognize that we took an oath that created a greater obligation on our part. This larger obligation we owe to society encompasses not only our express legal obligations, but also an obligation to be honest, civil, and professional human beings. Ethics Commentary Rule 4.4 of the Rhode Island Rules of Professional Conduct requires a lawyer to act with respect for the rights of third parties.

4–21

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

4–22

SELECTED CASE INVESTIGATION TECHNIQUES

EXHIBIT 4A—Checklist for Client Interviews ❑

Learn to listen

❑

Encourage your client to tell the story

❑

Follow a chronological sequence

❑

Use common sense and ask pointed questions

❑

Find out who the other players are

❑

Find out what documents or electronic records exist

❑

Discuss necessary measures for the preservation of evidence, particularly electronic evidence

❑

Identify legal issues

❑

Recognize the client’s need to vent

❑

Size up the client as a possible witness

❑

Size up the client as a decision maker

❑

Assess external factors

❑

Have a postinterview game plan

4–23

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

4–24

CHAPTER 5

Conducting Internal Investigations Jeffrey C. Schreck § 5.1

Introduction .......................................................................... 5–1

§ 5.2

Internal Investigations and Criminal Prosecution ............ 5–2

§ 5.3

§ 5.4

§ 5.2.1

Corporate Versus Individual Criminal Liability .... 5–2

§ 5.2.2

Prosecutorial Discretion ........................................ 5–3

§ 5.2.3

Public Company Accounting Reform and Investor Protection Act of 2002...................... 5–5

Does Your Client Need an Internal Investigation? ............ 5–8 § 5.3.1

Elements of Internal Investigation......................... 5–8

§ 5.3.2

Reasons for Investigation ...................................... 5–8

§ 5.3.3

Factors Militating Against Investigation ............... 5–9 (a)

Cost .............................................................. 5–9

(b)

Drain on Corporate Resources ................... 5–10

(c)

Risk of Disclosure...................................... 5–10

Stages of a Typical Internal Investigation .........................5–11 § 5.4.1

Things to Do Before Starting the Investigation....5–11 (a)

Initial Steps .................................................5–11

(b)

Role of In-House Counsel...........................5–11

(c)

Knowing Exactly Who the “Client” Is ....... 5–12

(d)

Making Sure Management Is Fully Behind the Effort........................................ 5–13

(e)

Protecting Available Privileges .................. 5–13

(f)

Setting Clear Goals and Objectives............ 5–14

(g)

Assembling Your Team .............................. 5–15 5–i

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

(h) § 5.4.2

§ 5.4.3

§ 5.4.4

§ 5.4.5 § 5.5

Organizational Chart and Chronology ........5–16

Privilege Issues ....................................................5–17 (a)

General Principles.......................................5–17

(b)

Attorney-Client Privilege............................5–17

(c)

Work Product Protection.............................5–18

(d)

Upjohn Co. v. United States........................5–19

(e)

“Self-Critical Analysis” Privilege ...............5–21

(f)

Waiver .........................................................5–22

Developing the Facts: Documents Before Interviews.................................................5–23 (a)

Create an Overview of the Available Materials .....................................................5–24

(b)

Appoint a Document Czar ..........................5–25

(c)

Organize the Materials You Collect ............5–26

(d)

Using the Documents as a Foundation for Your Investigation..................................5–27

(e)

Issues Concerning Destruction of Documents..............................................5–28

Conducting Employee Interviews ........................5–30 (a)

Have a Plan .................................................5–30

(b)

Consider Who Will Do the Interviewing and Who Will Attend ..................................5–30

(c)

Make an Outline..........................................5–31

(d)

Consider Where the Interview Will Occur...................................................5–32

(e)

Steps at the Start of the Interview ...............5–33

(f)

The Interview Itself.....................................5–36

(g)

Preserving Your Impressions of the Interview ...........................................5–37

Reporting Your Findings ......................................5–38

What to Do After the Investigation....................................5–38

EXHIBIT 5A—Selected Bibliography.............................................5–41 5–ii

CHAPTER 5

Conducting Internal Investigations Jeffrey C. Schreck

Scope Note This chapter discusses the wide range of issues involved in “internal investigations,” fact-finding ventures undertaken to assess a company’s current or future risk of civil or criminal liability. The chapter begins with certain issues relating to potential criminal prosecution and a discussion of how to determine whether an internal investigation is needed. It then reviews in detail each of the steps involved in internal investigations, including assembling a team, dealing with privilege issues, identifying relevant documents, and conducting employee interviews. Included with the chapter is a bibliography.

§ 5.1

INTRODUCTION

The term “internal investigation” is a shorthand label for various activities companies undertake to assess their current or future risk of civil or criminal liability. These activities are essentially fact-finding ventures launched within the corporation by outside counsel retained for that purpose, coupled with legal advice and guidance to senior management on the significance of any information collected. Beginning in the 1970s, internal investigative efforts became more popular as state and federal laws affecting corporations became more strict. Today dozens of laws and regulations govern activities both internal and external to the corporation, and each one can prompt the need for an investigation. The following is just a sampling: • laws prohibiting sexual harassment and employment discrimination on the basis of race, sex, and ethnicity; • false claims statutes and antikickback laws and regulations;

5–1

§ 5.1

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

• securities laws regulating the conduct of brokers, investment advisors, and corporate insiders, among others; • laws targeting health-care fraud; • environmental laws, such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Wetlands Protection Act, imposing civil and criminal penalties; • criminal laws, ranging from state laws preventing an assault or theft on company property to federal laws prohibiting embezzlement and other “white collar” offenses, securities violations, and intentional environmental violations; • the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (probably the most sweeping federal legislation concerning corporate governance in decades); and • laws prohibiting nonpayment or underpayment of corporate, business, and excise taxes, fees, and assessments. This chapter provides a general overview of how to conduct an efficient yet thorough and careful internal investigation and alerts counsel to the pitfalls hidden in that process.

§ 5.2

INTERNAL INVESTIGATIONS AND CRIMINAL PROSECUTION

Although this chapter focuses on internal investigations in the civil setting, prudent counsel must always be mindful of the potential criminal exposure lurking on the periphery of any incident involving potential civil liability. Practice Note Whatever you do to assist a client in mitigating civil liability, do not do it in a way that materially increases your client’s criminal exposure.

§ 5.2.1

Corporate Versus Individual Criminal Liability

When a corporation or other organization is involved in possible criminal activity, there are at least three groups of potential defendants. First and most obvious are the individuals who actually participated in the unlawful conduct. Under virtually any theory of criminal liability, each could be held criminally responsible. 5–2

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.2

Second, federal and most state laws recognize the “responsible corporate officer” doctrine. Under this doctrine, the government can prosecute any management-level employee—for example, any officer, director, or supervisor—who actively aids and abets wrongdoing or who knew, or should have known, that such unlawful conduct was occurring. Third, and most important for purposes of this chapter, the corporation itself can be held criminally liable. In United States v. Bank of New England, the First Circuit determined that the knowledge of each employee can be imputed to a corporation for the purpose of establishing criminal culpability; therefore, the corporation can be criminally liable for the collective knowledge, intent, and acts of its employees. United States v. Bank of New England, 821 F.2d 844 (1st Cir. 1987). Bank of New England is an expansive decision and in most respects reflects the outer limits of corporate criminal liability. Federal appeals courts elsewhere have not uniformly followed the Bank of New England decision. However, it exists as a potential enforcement vehicle for aggressive prosecutors.

§ 5.2.2

Prosecutorial Discretion

The fact that a corporation is exposed to potential criminal liability does not mean that it should or will be prosecuted. Within certain limits, federal, state, and local prosecutors have wide latitude and discretion in deciding who to charge and under what circumstances. A variety of nonstatutory factors bear on this decision. These factors should be considered in negotiating with various governmental authorities regarding conduct that exposes a corporation to potential criminal prosecution. In 1999, the U.S. Department of Justice (DOJ) drafted guidelines to formalize the policy considerations that are relevant to a prosecutor’s decision whether to prosecute a corporation. In January 2003, however, these guidelines were revised in light of revelations of corporate wrongdoing at Enron and the subsequent formation of the U.S. Justice Department’s Corporate Fraud Task Force. Although the guidelines apply only to federal prosecutors, they incorporate factors that most prosecutors take into consideration when exercising their discretion, and reflect a climate of renewed government scrutiny of corporate governance practices. The revised guidelines direct prosecutors to consider the following factors: • the seriousness of the crime, including potential harm or risk to the public; • how widespread the illegal behavior was within the corporation, and specifically whether it was condoned or furthered by management; 5–3

§ 5.2

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

• whether the corporation has engaged in similar or other illegal activity in the past and any prior enforcement or regulatory actions taken against it; • the collateral consequences prosecution may have for innocent third parties; • whether the corporation voluntarily disclosed its wrongdoing to law enforcement and its willingness to cooperate in an investigation of its employees, including waiving the protections of the attorney-client privilege and work product doctrine; • whether (as a vital corollary to the point immediately above) the corporation’s purported cooperation was genuine, meaning whether, for example, despite pledging its cooperation, the corporation made overbroad assertions of corporate representation of employees, directed current or former employees not to cooperate fully, made misleading assertions to government investigators, or produced incomplete records; • the existence and adequacy of a compliance program; • any remedial actions the corporation has taken, including creating or improving a compliance program, terminating responsible management and the actual wrongdoers, paying restitution, and cooperating with the government; and • whether noncriminal remedies would be adequate. Memorandum from Deputy U.S. Attorney General Larry D. Thompson (Jan. 20, 2003), available at http://www.usdoj.gov/dag/cftf/corporate_guidelines.htm. Finally, prosecutors often prefer to prosecute culpable individuals within corporations rather than the corporations themselves. In these situations it is often possible to negotiate a nonprosecution agreement on behalf of the corporation (this is also addressed in the 2003 Thompson memo). The prospects for doing so, however, dramatically diminish if the corporation is reluctant to cooperate in investigating and disclosing criminal wrongdoing and identifying the culpable employees. These considerations should be at the forefront of any strategy devised for addressing a corporate or organizational client’s criminal exposure.

5–4

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.2.3

§ 5.2

Public Company Accounting Reform and Investor Protection Act of 2002

Better known as the Sarbanes-Oxley Act of 2002, the Public Company Accounting Reform and Investor Protection Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (available at http://news.findlaw.com/hdocs/docs/gwbush/sarbanesoxley072302 .pdf) is “post-Enron” legislation designed to increase accountability for corporate financial activities and stiffen legal penalties for corporate wrongdoing. Every lawyer who conducts internal investigations for public companies should be familiar with Sarbanes-Oxley and its implications. Although a detailed discussion is beyond the scope of this chapter, a short overview is appropriate. Sarbanes-Oxley has altered both the atmosphere in which lawyers conduct investigations for their corporate clients and the attitude of government agencies toward the results of those investigations. Major highlights of the act include the following: • The act created the Public Company Accounting Oversight Board, a body supervised by the Securities and Exchange Commission (SEC) but independent of the public accounting industry, which now oversees the audits of public companies that are subject to federal securities laws. The board is, among other things, empowered to investigate and discipline public accounting firms. Sarbanes-Oxley Act of 2002 §§ 101–09. • The act requires the boards of directors of every publicly traded company to form an audit committee, composed of financially literate independent directors, to, among other things, oversee and independently evaluate audits of the company’s financial statements. Sarbanes-Oxley Act of 2002 §§ 301–03. • The act requires the SEC to issue rules setting minimum standards of professional conduct for attorneys representing companies before the SEC, including rules “requiring an attorney to report evidence of a material violation of securities laws or breach of fiduciary duty” to the company’s general counsel or CEO and, if no remedial action is taken, then reporting the matter to the audit committee. Sarbanes-Oxley Act of 2002 § 308. • As of June 15, 2004, the act requires the SEC to issue rules holding corporate management accountable for maintaining effective internal controls on financial reporting.

5–5

§ 5.2

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

• The act requires CEOs and CFOs to certify, in writing, that every periodic report to the SEC fairly represents the financial condition of the company, and provides criminal penalties for certifying false reports. Sarbanes-Oxley Act of 2002 § 906. • The act significantly broadens and enhances criminal penalties for corporate wrongdoing, including destroying or altering documents (18 U.S.C. § 1519), destroying or tampering with corporate audit records (18 U.S.C. §§ 1512, 1520), and securities fraud (18 U.S.C. § 1348), and mandates increased penalties for fraud, obstruction, and other white-collar crimes under the Federal Sentencing Guidelines (Sarbanes-Oxley Act of 2002 §§ 805, 905). The act also increases statutory maximum prison terms for mail and wire fraud and monetary penalties for ERISA violations. Sarbanes-Oxley Act of 2002 § 903. • The act provides for public and private civil actions against companies that retaliate against corporate whistle-blowers. SarbanesOxley Act of 2002 § 806 (adding 18 U.S.C. § 1514A). Sarbanes-Oxley and the renewed government emphasis on investigations of corporate wrongdoing have impacted several of the aspects of internal investigations discussed in this chapter. Practitioners reviewing the basic steps for investigating potential company wrongdoing should keep in mind the following: • Choice of counsel. If the investigation involves corporate financial accountability issues, consider anew whether you are the best choice for the job. If you or your firm assisted with, or were aware of, any of the suspect transactions, or have any close ties with corporate management (e.g., board membership), alternative counsel should be considered. See, e.g., In re Enron Corp. Sec. Litig., 235 F. Supp. 2d 549, 665–68 & n.103 (S.D. Tex. 2002) (questioning whether law firm with ties to company should have conducted internal investigation). • Strategic waivers of privilege. Lawyers conducting internal investigations should take steps to preserve the confidentiality of their work. See § 5.4.2, Privilege Issues, below. Now more than ever, however, when clients are facing government investigations, practitioners must consider recommending that the company disclose all investigative results to the government. Often this will be the best course; it has become a major factor, for example, in federal prosecutorial decisions. Courts are somewhat divided on whether this kind of disclosure is an automatic privilege waiver, 5–6

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.2

and a waiver as to any privileges of third parties, regardless of nondisclosure or nonwaiver agreements. See, e.g., United States v. Billmyer, 57 F.3d 31, 35–38 (1st Cir. 1995) (reviewing waiver implications of American Honda’s disclosure of internal investigation results to government, where Honda sought to quash subpoena by criminal defendant for that information). • Documenting interviews. In light of the possibility that a company will choose to turn over to the government outside counsel’s investigative report, counsel can be sure that his or her summaries of interviews and related work product will suffer unprecedented scrutiny, especially in matters resulting in criminal prosecution. Depending on the type of investigation, counsel might consider avoiding any subjective assessments in the interview summary (although note that this might affect its status as attorney work product) or not memorializing the interview at all. Whichever course is taken, however, in larger investigations lead counsel should ensure that all interviewers follow the chosen ground rules. See also Error! Reference source not found., Preserving Your Impressions of the Interview, below. • Handling rough notes and drafts. Assuming there are no outstanding subpoenas, discovery requests, or impending litigation, it is not unusual for attorneys to destroy notes and drafts during internal investigations once final work product is completed. SarbanesOxley, however, specifically targets destroying or tampering with corporate records and obstruction of government investigations. See, e.g., Sarbanes-Oxley Act of 2002 § 1102. Consequently, counsel should be careful not to run afoul of the act in investigations of corporate financial accountability. See also § 5.4.3(e), Issues Concerning Destruction of Documents, below. Beyond Sarbanes-Oxley, internal investigations in the criminal context raise a host of other issues that are beyond the scope of this chapter. But because investigations prompted by potential civil liability may raise concerns about possible criminal exposure for business clients, the rest of this chapter focuses on techniques and issues relevant in both civil and criminal contexts.

5–7

§ 5.3

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

§ 5.3

DOES YOUR CLIENT NEED AN INTERNAL INVESTIGATION?

§ 5.3.1

Elements of Internal Investigation

The basic ingredients of an effective internal investigation are not obscure: • talk to corporate management, • collect and review internal documents, • interview selected personnel, and then • present your findings to management. These steps, however, raise serious practical business concerns—beyond concerns about legal liability—that must be carefully considered before counsel embarks on an investigation of the client and its activities.

§ 5.3.2

Reasons for Investigation

A company may be considering an internal investigation for a variety of reasons. Initially, however, all investigations fall into essentially three categories: • efforts to find out exactly what happened, • efforts to minimize damage to the company or organization resulting from improper conduct, and • preemptive efforts to ensure that nothing bad happens in the future. The position of the corporate client seeking your advice affects whether an investigation is prudent. The company in the first or second stance is obviously worse off, because an incident, be it an assault occurring on company property or an unauthorized discharge of industrial waste, already has taken place. Investigation is required, for it is better to know the bad news early on, determine its extent, and start dealing with it. As for the company fearing future problems, the proper course can be less clear. A company may be at risk even though an incident has not yet occurred. Company management may have heard a rumor, received an incident report from the plant, or been given information in an exit interview or a call to a company hotline. There may be industry rumors of a new DOJ probe, Securities and Exchange 5–8

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.3

Commission (SEC) initiative, or FBI investigation, or a company auditor may have identified noncompliance issues regarding certain laws or regulations. In more troubling scenarios, your client may have already received an “informal request” from the SEC or a government subpoena. In short, the need for an investigation increases with the specificity and immediacy of the information the company possesses. Rumors might not justify the cost and risk, but a credible employee allegation or a polite letter from the attorney general’s office certainly could. Other factors supporting an investigation include the following: • As stated, genuine warning signs that problems exist mean an investigation is warranted regardless of other considerations. Legally speaking, problems rarely solve themselves. • Corporate directors and officers must meet their duty of care to the corporation, which requires diligence in addressing potential problems, particularly those that have been identified and brought to management’s attention. • Addressing problems early may help minimize the risk of criminal prosecution or mitigate potential punishment under the U.S. Sentencing Guidelines. On this point, counsel suspecting potential criminal exposure should review the U.S. Department of Justice’s Principles of Federal Prosecution, U.S. Attorneys’ Manual § 9-27.000, available at http://www.usdoj.gov/usao/eousa/foia _reading_room/usam/title9/27mcrm.htm and its guidelines for corporate criminal liability. See Memorandum from Deputy U.S. Attorney General Larry D. Thompson (Jan. 20, 2003), available at http://www.usdoj.gov/dag/cftf/corporate_guidelines.htm. • Responding to problems in a timely fashion can mitigate civil liability, including minimizing exposure to, if not inoculating the company from, a substantial punitive damages award.

§ 5.3.3 (a)

Factors Militating Against Investigation Cost

Even a small and relatively contained internal investigation usually involves at least one outside lawyer, various staff, and possibly consultants. It can span several months and generate significant legal costs for the client. Such costs should 5–9

§ 5.3

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

be considered in light of the likelihood of litigation or government enforcement and the complexity of the conduct at issue (investigating an assault is usually cheaper than investigating accounting or tax fraud).

(b)

Drain on Corporate Resources

Even a corporation that is initially eager to launch an investigation eventually may regret the ongoing drain on corporate resources. Depending on the size of the company, investigations can consume significant amounts of management’s time—time that could be spent tending to urgent business issues. The investigation can disrupt operations at lower levels of the organization as well, as the investigative team interviews employees and combs through files, e-mail, and other data. Finally, investigations are always grist for the corporate rumor mill; in some instances the investigation itself is a bigger event than the incident that prompted it.

(c)

Risk of Disclosure

If the investigation is properly conducted, the results may be protected under the attorney-client privilege and work product doctrines. This may lead you to believe that, if you and your client are careful, the results of the investigation will remain confidential. You might be wrong. First, there is always the risk that a corporate officer will waive the privilege or that a written report of the investigation will be publicly disclosed (by accident or otherwise). Second, the company’s own postinvestigation litigation actions and strategy may prompt a court to require disclosure of the investigation and its results. See, e.g., Pray v. New York Ballet Co., No. 96 Civ. 5723-RCL-HBP, 1997 WL 266980, at *1–3 (S.D.N.Y. May 19, 1997) (because ballet company invoked its immediate corrective measures as a defense to a sexual harassment claim, the nature and conclusions of the investigation were at issue, and plaintiff could depose the outside lawyers who conducted it); Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (because plaintiff’s interrogatory questions were not answered “truthfully and forthrightly,” plaintiff was entitled to employee statements and interviews conducted by counsel).

5–10

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

§ 5.4

STAGES OF A TYPICAL INTERNAL INVESTIGATION

§ 5.4.1

Things to Do Before Starting the Investigation

(a)

Initial Steps

The first step in an internal investigation is to meet with your client. Counsel must learn everything management knows about the incident or concerns prompting the investigation and about the sources of information management is relying on. This information often prompts counsel to conduct legal research, especially where corporate criminal liability is a possibility; depending on what your client has told you, the risk of liability may be exaggerated. Counsel should also discuss with management the factors identified in § 5.3, above, as well as the potential fallout from the investigation. See § 5.5, below.

(b)

Role of In-House Counsel

Someone may suggest that in-house counsel should conduct the investigation, because it is nearly always easier and cheaper. For anything more than a minor investigation, this is not recommended. First, outside counsel usually is—in both appearance and fact—a more independent, unbiased investigator than in-house counsel. If in-house counsel is potentially implicated in the events underlying the investigation or knows the players involved, he or she should not conduct the investigation. Moreover, employees interviewed during the investigative process may perceive independent counsel as more impartial and less of a threat to the employee’s job. Third, in-house counsel may later be needed as a witness, even if not directly involved in the underlying events. Fourth, as a corporate officer, in-house counsel may have more trouble maintaining attorney-client or work product protections during the investigative process; the line between “legal” and “business” advice is often sufficiently hazy to trip up even experienced lawyers. See, e.g., Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (there was a lack of evidence that the in-house attorneys were acting in a capacity as legal advisors and were communicating in order to generate legal advice); Fine v. Facet Aerospace Prods., 133 F.R.D. 439, 443−44 (S.D.N.Y. 1990) (memo written during investigation by in-house counsel, who was also assistant secretary of the corporation, held not privileged). Finally, outside counsel often will have more experience 5–11

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

and resources to bring to bear in the investigation and any ensuing prosecution or litigation. Practice Note That said, keep in mind that in-house counsel are often vital to the success of internal investigations. Outside counsel will need their assistance throughout the process, for anything from locating documents and encouraging employee cooperation to providing important intelligence on the workforce and conducting shuttle diplomacy with corporate management.

(c)

Knowing Exactly Who the “Client” Is

Protecting applicable privileges and avoiding conflicts of interest are constant themes in internal investigations. It is critical in the early going to clarify who the “client” is. The client is nearly always the corporation itself, as opposed to any of its individual directors, officers, or employees. Because the objective of the investigation is to figure out who did what, when, and why, conflicts invariably will arise. If the events at issue implicate specific members of management, consider—from the onset—finding separate counsel for those persons. Where management is implicated, communication with the “client” will be directed to a subset of disinterested directors or a committee established and empowered to authorize and oversee the investigation. Practice Note Counsel should resist the temptation to represent jointly the company and any individual within it. See, e.g., Felix v. Balkin, 49 F. Supp. 2d 260, 271 (S.D.N.Y. 1999) (warning that counsel “must be particularly circumspect” when asked to represent both an employer and employee, because without knowing all relevant facts counsel cannot assess whether interests are truly common).

Example An investment consulting firm for individuals and small institutions is the subject of an informal SEC inquiry into its trading practices. In the course of the company’s providing the SEC with records of trades on behalf of firm clients, it becomes apparent that the firm’s founder, John Doe, a registered investment advisor, is implicated in embezzling funds belonging to the firm’s largest account. Counsel, however, was retained by the firm’s board, not Mr. Doe. As directors, the firm’s other board members have an affirmative duty to protect the interests of the company, as does counsel retained on the company’s behalf. Because Mr. Doe is now suspected of criminal activity

5–12

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

that may have adversely affected the firm, he will require separate representation. Strategically, counsel for the company may consider a joint defense agreement with counsel retained by Mr. Doe in his individual capacity. Because of the clear potential for criminal prosecution, however, a joint defense may not be in the investment firm’s best interest. See § 5.4.4(e), below.

(d)

Making Sure Management Is Fully Behind the Effort

Management must fully support the investigative effort. Because most effective investigations are intrusive, the company must understand and fully appreciate what the investigation may entail in effort and resources, and commit to pursuing it. If appropriate, consider having the board pass a resolution approving the investigation. Enlist the aid of in-house counsel, if any, in smoothing the way. Practice Note Management’s obvious support will also encourage the cooperation of company personnel.

(e)

Protecting Available Privileges

Counsel should be sure that the engagement letter for his or her services makes clear that • counsel is being retained to provide legal advice, and • counsel’s services are necessary because the company anticipates litigation. Any board resolution also should establish these points. Finally, a member of senior management should draft and send in-house counsel (or another appropriate officer) a memorandum requesting the commencement of an investigation. The memorandum should set forth the company’s reasons for the investigation— that the corporation seeks legal advice and believes litigation may ensue. All of these steps will help ensure that, if questions arise, there is no doubt that counsel was retained for the purpose of rendering legal—not business—advice. For a useful model of an internal memorandum from management to in-house counsel, see Dan K. Webb, Robert W. Tarun & Steven F. Molo, Corporate Internal Investigations § 6.08[1] (Law Journal Seminars Press 1993 & Supp. 2000). See also City of Worcester v. HCA Mgmt. Co., 839 F. Supp. 86, 88–89 (D. Mass. 1993) (internal audit considered protected work product because, among other reasons, it was addressed to the general counsel). 5–13

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

Counsel should make clear to management that all information collected and all discussions with counsel during the investigation should be kept absolutely confidential by management and all employees. Management should consider a company-wide memorandum to this effect, which will also help allay rumors by providing “official” information about the incident and the investigation. Practice Note An announcement is not always appropriate. The decision depends on, among other things, the sensitivity of the relevant events and the impact the widespread dissemination of information about the events will have on counsel’s ability to investigate. Also, keep in mind that the memorandum may eventually end up in the hands of opposing counsel, government investigators, or the press.

(f)

Setting Clear Goals and Objectives

Establishing clear goals and objectives is vital to conducting an efficient, comprehensive, and successful investigation. Before embarking on this venture, counsel should define the parameters of the investigation and discuss them with management. First, research the relevant body of law to help define the relevant factual issues. This should involve familiarizing yourself with the civil, criminal, and regulatory principles bearing on your client’s exposure. At a minimum, review guidelines concerning the exercise of prosecutorial discretion by relevant governmental authorities and any case law setting forth the elements and limitations of individual and corporate liability, both civil and criminal. Second, establish a time frame—you will not be reviewing every internal document created since the company or organization’s inception, nor will you be questioning employees about their experiences in third grade. Practice Note During the investigation, you may discover infractions by company personnel that are wholly unrelated to the events under review. Unless they are serious, resist the temptation to investigate them now. Raise them with management, but focus on the goal of your present inquiry and pursue other leads later as appropriate.

Beyond making it more likely that counsel will conclude the investigation in a timely fashion, focusing on specific goals will keep the amount of information manageable and lower costs. A clear plan, with the relevant law in mind, will help you identify more quickly any gaps in the information you gather. 5–14

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

Practice Note Although you should always keep the big picture in mind (especially in larger investigations spanning a substantial period), you should not confuse having clear goals with basing the investigation on a predetermined theory about what occurred. After legal research and initial fact gathering, you will begin to get a sense of what happened. But be careful not to stubbornly follow your initial theory or impressions, as new facts may contradict and ultimately undermine them. Clinging to an increasingly implausible theory wastes time and money and threatens the effectiveness of your investigation and the credibility of its findings.

(g)

Assembling Your Team

Initially it may be difficult to know how many people you will need to complete the investigation in a reasonable time. Two lawyers (often a partner and an associate) and a paralegal (to organize and maintain documents) are usually sufficient. You should meet with your team before beginning to gather facts, to ensure that all members fully understand privilege and work product issues and, in larger investigations, to establish uniform procedures for reviewing documents and interviewing witnesses. You may want to retain outside consultants. If the subject of the investigation involves, for example, accounting or complex environmental issues, you may need a consulting expert to assist you in formulating questions and sifting through data. Investigative firms with experienced technical staff may prove indispensable in recovering data from personal computers and servers. In addition, you may consider retaining a professional investigator for discrete tasks, such as tracking down certain witnesses or collecting background information about them. It is not recommended that professional investigators (or other nonlawyers) conduct the actual interviews of company personnel. Counsel’s legal training and knowledge of the underlying substantive law, evidentiary rules, and applicable privileges are important in knowing what questions to ask and how best to ask them. In addition, conversations with the investigator or consultant may not, in certain instances, be sufficiently protected by the attorney-client privilege. Compare United States v. McPartlin, 595 F.2d 1321, 1337 (7th Cir.) (investigator was “agent” for attorney, therefore conversation privileged), with Byrnes v. Empire Blue Cross Blue Shield, No. 98 Civ. 8520-BSJ-MHD, 1999 WL 1006312, at *4 (S.D.N.Y. Nov. 4, 1999) (legal research conveyed by actuary and consultant to client not privileged without specific indication that research was performed at lawyer’s request). So long as investigators or consultants are working at the direction of 5–15

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

counsel, however, the work product doctrine should cover whatever documents they create as long as the investigatory work satisfies the requirements for asserting the work product privilege. See, e.g., Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 20055702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (an investigative report is not privileged if it consists of detective work, not legal services). To better protect applicable privileges, counsel—not the company—should hire any investigators or consultants and should make clear in writing to all experts, investigators, and other outside personnel that they are being retained to assist counsel in providing legal advice to the client in anticipation of litigation. That said, if the work consists of fact-gathering rather than providing legal advice, the work product privilege may not apply, and it does not create a privilege with respect to the facts that are gathered. See, e.g., Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 20055702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009).

(h)

Organizational Chart and Chronology

Two documents will greatly assist counsel in the early going: • a corporate organizational chart and • a running chronology of events. As to the former, most companies have an organizational chart that they update regularly. This will help counsel identify key decision makers, chains of command, direct reporting relationships, and other information vital to deciding whom to interview. As to the latter, counsel should start preparing the chronology after the first informational session with the client. It should be updated as counsel obtains new information. The source of each key fact should be identified, along with any associated documents. This will help counsel and the investigative team keep the big picture in mind, readily identify gaps in information— instances where corroboration may be minimal or lacking altogether. The chronology will help counsel prepare a final report to management after the investigation is concluded.

5–16

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

Practice Note Be sure to maintain work product protection with respect to the chronology by including counsel’s mental impressions where appropriate; avoiding disclosing the chronology to others, such as interviewees; and stamping each page of the chronology with words clearly indicating that the document is “confidential attorney work product.”

§ 5.4.2 (a)

Privilege Issues General Principles

Maintaining attorney-client privilege and work product protection are vital, ongoing concerns in an internal investigation. The following material summarizes the issues related to preserving the confidentiality of counsel’s investigative work for the corporate client; a detailed discussion of these doctrines is beyond the scope of this chapter. Before counsel and his or her team start any investigation, they must have a thorough understanding of the principles underlying these privileges and protections, the nuances regarding their application, and the ways and circumstances in which they may be waived inadvertently. See, e.g., State v. Von Bulow, 475 A.2d 995, 1004–12 (R.I. 1984).

(b)

Attorney-Client Privilege

The basic contours of the attorney-client privilege and work product doctrine protection are well established. The attorney-client privilege protects “communications made by a client to his attorney for the purpose of seeking professional advice, as well as the responses by the attorney to such inquiries.” State v. Von Bulow, 475 A.2d 995, 1004 (quoting Haymes v. Smith, 73 F.R.D. 572, 576 (W.D.N.Y. 1976)). The privilege extends to representatives, agents, and employees of both attorney and client. The privilege may be lost if the parties do not take adequate steps to maintain confidentiality of communications. Rosati v. Kuzman, 660 A.2d 263 (R.I. 1995). Also, not all communications between attorneys and their clients are privileged, Langley v. Providence Coll., No. PC/20055702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (citing cases), and “[t]he mere existence of a relationship between attorney and client does not raise a presumption of confidentiality.” Pastore v. Samson, 900 A.2d 1067, 1084 (R.I. 2006).

5–17

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

Depending upon the circumstances, the privilege may extend to communications with employees who are outside of what has been characterized as “control group officers and directors,” including former employees. “In rejecting the control group test and in extending the attorney-client communications privilege to communications with middle and lower level employees, courts have turned to a subject matter test that focuses on the nature of the communication—not the status of the communicator.” Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009). Courts have increasingly applied a functional approach, “fundamentally returning to the core elements of the attorney-client communications privilege. Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (citing Samaritan Found. v. Goodfarb, 862 P.2d 870, 874 (Ariz. 1993)). Whether a communication is privileged “will turn on the particular fact situation of each case. The determination of whether on those facts the privilege exists is exclusively legal and is for the court, and not for the jury.” DiBiasio v. Browne & Sharpe Mfg., 525 A.2d 489, 491 (R.I. 1987) (quoting Ponticelli v. Mine Safety Appliance Co., 104 R.I. 549, 555 (1968)); see also Prosser & Keeton, The Law of Torts, § 115 at 835 (5th ed. 1984). A person need not have formally retained an attorney in order to claim that a communication with the attorney is privileged, something that can be an important consideration in employee interviews, as discussed further below. It is important to note that privilege protects disclosure of communications between an attorney and a client, but does not protect the parties from disclosing underlying facts. Crowe Countryside Realty Assocs. Co. v. Novare Eng’rs, Inc., 891 A.2d 838, 846 (R.I. 2006).

(c)

Work Product Protection

The work product doctrine may protect from disclosure information prepared by counsel, its staff, or client representatives. See Super. R. Civ. P. 26(b)(3). In order “[t]o determine whether an item is work product, one must look, as a preliminary matter, at whether, in light of the nature of the document or tangible material and facts of the case, the document can be said to have been prepared or obtained because of the prospect of litigation, by or for an adverse party or its agent.” Henderson v. Newport County, 966 A.2d 1242 (R.I. 2009) (quoting Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989)). Litigation need not have commenced for 5–18

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

the work product privilege to apply. Fireman’s Fund Ins. Co. v. McAlpine, 120 R.I. 744, 748–49 (1978). “The work product privilege concerns two distinct types of work product. The first refers to a document or other written material containing the mental impressions of an attorney or his or her legal theories.” Henderson v. Newport County, 966 A.2d at 1247 (citing Crowe Countryside Realty Assocs. Co. v. Novare Eng’rs, Inc., 891 A.2d 838, 840 (R.I. 2006)). This is “opinion” work product that receives the highest level of protection and qualifies for absolute immunity from discovery. This protection applies even where opinion work product is provided to a testifying expert, although factual information of course must be disclosed. Crowe Countryside Realty Assocs. Co. v. Novare Eng’rs, Inc., 891 A.2d at 846. Protection also is given to “factual” work product, materials, or documents prepared in anticipation of litigation that does not include the actual thoughts of the attorney, although the privilege is qualified, not absolute. The material may be prepared by a party’s representative or agent and still receive the qualified immunity from discovery offered to this type of work product. Factual work product is subject to discovery where “the party seeking discovery demonstrates a substantial need for the materials and [establishes] that it cannot obtain the substantial equivalent without undue hardship.” Henderson v. Newport County, 966 A.2d at 1248 (quoting Crowe Countryside Realty Assocs. Co. v. Novare Eng’rs, Inc., 891 A.2d at 842).

(d)

Upjohn Co. v. United States

Counsel must also be familiar with the U.S. Supreme Court’s seminal decision on privilege in the context of internal investigations, Upjohn Co. v. United States, 449 U.S. 383 (1981). In that case, Upjohn’s management had sent confidential questionnaires to its employees regarding potential wrongdoing by corporate personnel, while in-house counsel prepared memoranda and notes of interviews. The Court held that the attorney-client privilege and work product doctrine apply to internal investigative activities. Ratifying an important corollary, the Court observed that “the [attorney-client] privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him or her to give sound and informed advice.” Upjohn Co. v. United States, 449 U.S. at 389 (emphasis added); see also Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (discussing Upjohn).

5–19

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

The Court articulated several facts that would support—though not guarantee—a successful claim of privilege in connection with employee interviews: • communications were made by employees to counsel, • the communications were made at the direction of management so that the company could obtain legal advice from counsel, • the employee was aware that this was the purpose of the communication, • the information sought by counsel was not available from management, and • the communications were confidential when made and kept confidential thereafter. Upjohn Co. v. United States, 449 U.S. at 391–92. The Court also addressed the work product doctrine. The Court made clear that in the context of internal investigations the protections afforded by the work product doctrine are to be taken seriously, especially with regard to the mental impressions of counsel. The IRS’s assertion that relevant company employees were “scattered across the globe” and that Upjohn had forbidden them from answering certain questions did not deter the Court (which remanded the issue). Upjohn Co. v. United States, 449 U.S. at 399–401. The application of Upjohn in different contexts was extensively discussed in Langley v. Providence College. The court noted that “courts have declined to apply control group limitations under certain circumstances,” and discussed situations in which the control group test could “frustrate the very purpose of the privilege.” Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009). Where, for example, lower-level employees were in a position to substantially influence a corporation’s action that is taken on the advice of an attorney, the attorney-client privilege may be extended to such employees. Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (citing Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491 (7th Cir. 1970), 5–20

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

aff’d by an equally divided court, 400 U.S. 348 (1971)). In these situations, courts have turned to a “subject matter test” that focuses on the nature of the communication, not the employment status of the person having the communication. Harper & Row Publishers, Inc. v. Decker, 423 F.2d at 492. However, because this privilege approach is often overinclusive, courts have applied a “functional approach” looking at the nature, purpose, and context in which the communication occurs. Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009). Massachusetts courts appear to follow Upjohn with respect to privilege claims by corporations. At least one federal magistrate judge has concluded as much, Command Transp., Inc. v. Y.S. Line (USA) Corp., 116 F.R.D. 94, 95, 97 n.10 (D. Mass. 1987) (Alexander, Mag. J.), and at least two Massachusetts Superior Court judges have concluded that Massachusetts privilege law tracks Upjohn. See Levine v. Marshall, No. 95-1504-B, 1997 WL 416581 (Mass. Super. Ct. July 18, 1999) (King, J.); Nat’l Employment Serv. Corp. v. Liberty Mut. Ins. Co., 3 Mass. L. Rptr. 221 (Super. Ct. 1994) (Welch, J.) (noting that by citing Upjohn the Supreme Judicial Court has “demonstrated its willingness to follow federal precedent concerning the nature of the attorney-client privilege” and applying Upjohn factors to uphold privilege and work product claims for internal company e-mails) (citing Commonwealth v. Goldman, 395 Mass. 495, 502 (1985)); cf. Proposed Mass. R. Evid. 502(a)(1) (allowing public and private entities to claim privilege). With this in mind, counsel should use Upjohn as a guide to preserving the attorney-client and work product protections while conducting internal investigations on behalf of corporate or organizational clients.

(e)

“Self-Critical Analysis” Privilege

Some jurisdictions have recognized a “self-critical analysis” or “self-evaluation” privilege under which an organization’s internal reports and critical assessments remain confidential under certain circumstances in which confidentiality is anticipated by all parties who are involved. The rationale for this privilege is that it encourages organizations to assess their operations critically, and to improve and correct their conduct and practices, without worrying that their assessment will be used against them. This privilege arose in the context of medical peer review and led to the adoption by most states of a statutory “peer review” privilege for medical-care providers. Some courts have extended this privilege beyond medical care to cases involving issues such as product safety assessments and product liability. See, e.g., Reichold Chems., Inc. v. Textron, Inc., 157 F.R.D. 522, 525 (N.D. Fl. 1994). 5–21

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

Rhode Island has not adopted this privilege. See, e.g., Brokaw v. Davol Inc., 2008 RISUP 07-5058 (R.I. Super. Ct. 2008). The court observed that “privileges are not favored” and “the source of newly created privileges has ‘shifted decisively from the courts to the legislatures.’” Brokaw v. Davol Inc., 2008 RISUP 07-5058 (R.I. Super. Ct. 2008) (quoting McCormick on Evidence § 75 at 352 (6th ed. 2006)). The Rhode Island Supreme Court stated recently that it does not “easily embrace the creation of new privileges.” Gaumond v. Trinity Repertory Co., 909 A.2d 512, 519 (R.I. 2006). “[T]he attorney-client privilege must be narrowly construed because it limits the full disclosure of the truth.” Pastore v. Samson, 900 A.2d 1067, 1084 (R.I. 2006).

(f)

Waiver

The attorney-client privilege is limited to communications that are intended to be confidential. “An essential element that must be proved in establishing the existence of the privilege is that it has not been waived.” State v. Von Bulow, 475 A.2d 995, 1005 (R.I. 1984). The privilege may be waived by disclosure of otherwise confidential communications to a third party. Disclosure of documents to governmental authorities may waive the privilege, whether or not there was an intent to waive the privilege. State v. Von Bulow, 475 A.2d at 1006. Waiver may occur even if the actual privileged communications or documents are not disclosed. “[A] disclosure of, or even merely an assertion about, the communication may effect a waiver of privilege not only as to that communication, but also as to other communications made during the same consultation and communications made at other times about the same subject.” State v. Von Bulow, 475 A.2d at 1007 (quoting United States v. Aronoff, 466 F. Supp. 855, 862 (S.D.N.Y. 1979)). The attorney-client privilege may also be waived by the presence of third parties “who are not essential to the transmittal of information.” State v. Von Bulow, 475 A.2d at 1007–08 (quoting Hearn v. Rhay, 68 F.R.D. 574, 579 (E.D. Wash. 1979)). “Given the nature of the attorney-client privilege, the relevant inquiry focuses on ‘whether the client reasonably understood the conference to be confidential’ notwithstanding the presence of third parties.” Rosati v. Kuzman, 660 A.2d 263, 266–67 (R.I. 1995) (citing Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984)) (quoting McCormick on Evidence § 91 at 189 (1972)); see State v. Von Bulow, 475 A.2d at 1005 (communication is privileged if expressly intended to be confidential). The identity of the third party is relevant in making this waiver determination. See, e.g., State v. Juarez, 570 A.2d 1118, 1120 (R.I. 1990) (presence of polygraph examiner at attorney-client meeting failed to waive privilege as examiner was agent of attorney). The Rhode Island Supreme Court has rejected the liberal Hearn test for waiver, however, in favor of the stricter test used in Metropolitan Life Insurance Co. v. 5–22

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

Aetna Casualty & Surety Co., 249 Conn. 36, 730 A.2d 51 (1999). See Mortgage Guarantee v. Cunha, 745 A.2d 156, 159–60 (2000). Under that formulation, a determination of waiver “turns on whether the actual content of the attorneyclient communication has been placed in issue such that the information is actually required for the truthful resolution of the issues raised in the controversy.” Mortgage Guarantee v. Cunha, 745 A.2d at 160. Although an attorney’s notes of witness interviews would almost always be expected to fall within the definition of opinion work product that is subject to complete protection, that privilege can be waived. “Although there is no per se waiver rule in the work-product area,” the “selective disclosure of alleged work product can constitute an abandonment of the privilege.” State v. Von Bulow, 475 A.2d at 1010.

§ 5.4.3

Developing the Facts: Documents Before Interviews

Counsel initially must plan, at least roughly, the two key phases of the investigative process: • document collection and • employee interviews. As with discovery in civil litigation, counsel generally should collect documents before conducting interviews. It is usually better to have a working knowledge of the pertinent documents before questioning witnesses. Also as in litigation, internal document review should be thorough; if the company becomes involved in litigation or a government investigation, it may be required to produce the same materials collected in the course of the internal investigation. Keep in mind that the order of the investigation may depend on the circumstances. Depending on the events precipitating the investigation, there may be a handful of key personnel whom counsel should reach immediately, either because of position in the company (for example, controller) or role in the incident under investigation (for example, accused of sexual harassment). It could be that counsel will want to talk to those persons before they are able to conceal wrongdoing, account for or justify their actions, explain the existence or substance of certain documents, or otherwise avoid attention or detection. Because counsel’s interviews are not depositions, counsel can interview these people a second time, assuming management does not object, after a thorough review of the documents is complete.

5–23

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

Practice Note Shortly after the first interview, despite stern warnings about confidentiality, rumors may begin to flow about the investigation and perhaps even the interview itself. If it is crucial that certain later interviewees not know what was asked previously, consider arranging for several interviews to occur simultaneously or to be conducted one after the other and have management immediately send home (for the day) each interviewee upon the completion of the interview. This approach may be especially useful for investigations involving a specific occurrence, such as an instance of sexual harassment or a workplace accident.

(a)

Create an Overview of the Available Materials

In conducting a thorough investigation, counsel should seek all documents relevant to the factual and legal issues he or she has identified. The first step in grappling with this potentially large set of materials is to draft a list of document sources within the company. Counsel should compile a list based on his or her present knowledge and then consult with in-house counsel or other management personnel to identify additional sources. Counsel then should identify those divisions, departments, or offices within the company that are likely to generate or receive relevant documents, and then work from there to identify individuals who may have such documents. The relevant corporate areas will vary with the subject of investigation; an investigation concerning racial or sexual discrimination might center on human resources, while an investigation of accounting fraud might focus on the controller or the accounting section of a particular department. Completing the source list, which should be fairly detailed, usually will require the input of company employees who are directly involved with the aspects of the company’s activities that give rise to the investigation. For example, the head of a department involved in relevant activities will know the types and locations of documents generated and maintained in his or her department better than someone from general management. These employees also know what types of documents are kept in the ordinary course of the department’s business. Counsel should take the time to meet with as many of these supervisory personnel as needed, preferably on site, to compile a comprehensive list of leads for document review. This effort will make the actual document investigation more efficient and thorough.

5–24

CONDUCTING INTERNAL INVESTIGATIONS

(b)

§ 5.4

Appoint a Document Czar

Because of cost and time concerns, lead counsel often will not be the one collecting, reviewing, and organizing all relevant documents. Early on, counsel and management should identify one company officer or employee to oversee the document collection effort and related tasks (this is often in-house counsel). This person should be reliable and not implicated in the investigation in any way. Ideally, counsel should then appoint a counterpart in his or her firm to coordinate with the in-house employee—often a mid-level associate who can monitor the collection process and answer questions that arise. An experienced paralegal should be involved in both the actual collection and review of documents. Deadlines should be set and regular reports made to the attorney running the investigation. Management should identify for company personnel the person who is in charge of the document collection effort and make it clear that this person’s demands for documents and other records are to be met in a timely fashion. If this is done by memorandum or office-wide e-mail it lends credence to the collection effort and also gives management the opportunity to distribute important information about the investigation, including the following: • While the company may wish to limit the details it divulges concerning the investigation itself, management should make clear that the matter is a serious one and that cooperation is expected. • Employees should be told not to destroy any documents, in case they are doing so in the normal course of business. (Counsel should be familiar with any relevant document retention and destruction policies and any pertinent legal and ethical considerations if litigation is pending or a government investigation is under way.) • Employees should be given a general sense of what sources of documents may be investigated and the time frame for such inquiries. They also should be told not to copy any documents needlessly. • The person appointed to oversee the collection effort should be identified as the contact person regarding questions or concerns employees may have. Counsel’s efforts to locate responsive documents necessarily will involve searches of file cabinets, e-mails, company phone records, and document storage areas, just as they would during a document collection effort in civil discovery. Thoroughness is a paramount consideration. A record should be maintained that describes the steps that were taken to locate and collect relevant documents.

5–25

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

Practice Note As discussed below, in the course of conducting employee interviews, counsel can inquire as to possible document locations; investigating counsel should never rely on simply asking laypersons to collect all “relevant” materials, without explicit instructions.

Counsel should confer with the person appointed to oversee the collection effort and any counterpart in counsel’s firm, to brainstorm regarding what documents to seek, and to fashion objective criteria for identifying further responsive documents that may be in the organization’s files or the personal files of any employees. The best method of document review and collection will vary with the organization of the company and the amount of material involved. For smaller matters, it may suffice for counsel’s team to collect all relevant materials from each employee and assemble them in a secure conference room. For large matters, counsel may need a copy service on site and paralegals to pull, copy, and replace documents flagged by counsel’s team. In the course of this effort, during which counsel may be dealing with other matters, counsel should remain sensitive to the potential disruption of the company’s business and take steps to minimize the disruption and actively manage relations with company personnel. Practice Note Keep in mind that, although company employees may be cooperative with the appointed document czar and counsel’s staff, when out of earshot they may complain to peers and management, which may detract from the effectiveness of investigating counsel’s efforts.

(c)

Organize the Materials You Collect

Assuming your investigation generates many documents, good organization is important from the start. Documents generally should be organized by subject and chronologically, depending on what best suits the events being investigated. Especially large document productions may require computerized databases with fields for identifying and locating documents with certain characteristics. In any event, counsel should be sure to do the following: • Copy and Bates-number the documents—numbering makes it far easier to organize and index the materials collected. • Identify, mark, and segregate all privileged materials and create a privilege log.

5–26

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

• Identify, mark, and perhaps segregate all nonprivileged, confidential materials (such as materials containing trade secrets) that conceivably would be the subject of a protective order or confidentiality agreement in the event of formal litigation. • Maintain security—assembled documents should be kept in a secure room, ideally at counsel’s office, to which access is limited to counsel’s staff and key company personnel.

(d)

Using the Documents as a Foundation for Your Investigation

Documents should be reviewed by counsel’s team as they are collected. Particularly useful, relevant, or damaging (“hot”) documents should be flagged and catalogued. The accumulation of these documents will help counsel do the following: • Flesh out the relevant events. Use the documents to supplement and annotate counsel’s chronology. This will enable counsel to build a detailed story of the underlying events and identify “facts beyond change”—that is, those verified aspects of the story around which counsel must construct the remainder of the narrative. • Identify key personnel. Certain officers or employees may appear regularly in the relevant documents. As a result, they may be considered a “target” of the investigation—that is, implicated in wrongdoing—or a “subject” possessing important information. The documents also may help determine when certain personnel were aware or should have been aware of key events. Activity logs, mail and call logs, and other daily records are especially useful for this purpose. • Define the roles of various personnel and assess their credibility. An officer’s or employee’s version of events may conflict with the picture presented in the documents. These discrepancies can be explored in interviews and brought to management’s attention. As documents are reviewed, counsel or his or her staff should keep in mind which documents will be most useful in employee interviews. • Locate a “paper trail.” Especially in accounting cases or instances involving the apparent misappropriation of company assets, standard company forms or other documents can help counsel focus on a sequence of events involving a particular department or event. Also note that the absence of certain documents, 5–27

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

such as properly executed expense authorization forms, can be probative. • Allow counsel to better understand complex issues. Document review enables counsel to assemble materials for experts retained to assist in the investigation. Practice Note Keep privilege issues in mind when dealing with experts or requesting that they provide written reports based on information from the company’s files. Counsel should make certain that any expert retained to assist in the investigation executes a written confidentiality agreement that provides, among other things, that the expert is being retained and given access to confidential information for the express purpose of assisting counsel in rendering legal advice to the client. Gathering documents and identifying relevant facts as part of an internal investigation does not create a privilege as to the documents or the underlying facts.

(e)

Issues Concerning Destruction of Documents

During internal investigations conducted before formal litigation or the start of a government investigation, investigating counsel frequently confronts the legal and ethical issue of whether the company can destroy documents, including documents that would be destroyed as part of an existing document retention or destruction policy. This analysis is extremely fact-intensive. The law is not particularly well settled in this area, and the cases are not entirely consistent. Therefore, counsel must research both the law and facts thoroughly before allowing a client to destroy any documents that may be relevant to potential litigation or an investigation, even pursuant to a long-standing document retention or destruction policy. There can be serious adverse consequences from improperly destroying documents that are the likely subject of imminent litigation or of a government investigation. Practice Note The law on this issue may vary from jurisdiction to jurisdiction. Moreover, the choice of law may not always be clear, such as in an investigation of alleged wrongdoing by the Providence-based employees of a Delaware corporation that is headquartered in New York and storing old documents and data in New Hampshire. In cases of doubt, the most prudent course will be to advise a client to act in conformance with the most conservative of the potentially applicable jurisdictions. In general, given the risk that a client and lawyer

5–28

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

face if arguably relevant documents are not preserved, great care should be taken before documents are destroyed, and it may be prudent to instruct a client to cease destruction of any documents until the litigation or investigation has been concluded.

Many courts hold that a company should not have destroyed documents when it “knew or should have known” that litigation was “likely” or “threatened.” See, e.g., Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991); Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D. Minn. 1989); McLain v. Taco Bell Corp., 527 S.E.2d 712, 718 (N.C. App. Ct. 2000). Nonetheless, routine, good-faith disposal of documents under a long-standing document retention policy may justify destruction of documents relevant to later litigation. See, e.g., Carlucci v. Piper Aircraft Corp., 102 F.R.D. 472, 486 (S.D. Fla. 1984). Some courts, however, hold that following consistent policy, even if “reasonable,” does not excuse destroying documents when the company is “on notice” of their relevance. See Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. 1988) (concluding that an adverse inference could be proper in those circumstances); see generally Lawrence Solum & Stephen Marzen, “Truth and Uncertainty: Legal Control of the Destruction of Evidence,” 36 Emory L.J. 1085 (1987). Practice Note Also consider the federal prosecution of investment banker Frank Quattrone, who was charged with obstructing a pending government investigation of Credit Suisse First Boston because he endorsed and forwarded a companywide e-mail urging employees to follow the company document retention policy and “clean up” their files. (A copy of the indictment is available at http://news.findlaw.com/cnn/ docs/csfb/usquattrone51203ind.pdf.)

The “deliberate or negligent destruction of relevant evidence by a party to litigation may give rise to an inference that the destroyed evidence was unfavorable to the party.” Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744 (R.I. 2000). A showing of bad faith need not be shown, “although a showing that a party has destroyed evidence in bad faith or in anticipation of trial may strengthen the spoliation inference.” Kurczy v. St. Joseph Veteran’s Ass’n, Inc., 820 A.2d 929, 946 (R.I. 2003) (quoting R.I. Hosp. Trust Nat’l Bank v. E. Gen. Contractors, Inc., 674 A.2d 1227, 1234 (R.I. 1996)). Although an adverse inference “does not arise where the destruction was a matter of routine with no fraudulent intent,” State v. Barnes, 777 A.2d 140, 145 (R.I. 2001) (quoting 29 Am. Jur. 2d, Evidence § 244 at 256 (1994)), the Rhode Island Supreme Court has approved a spoliation instruction where board minutes could not be located and were not destroyed in accordance with the association’s routine practice. Kurczy v. St. Joseph Veteran’s Ass’n, Inc., 820 A.2d 929, 946–47 (R.I. 2003). More recently, the court approved

5–29

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

a spoliation instruction where defendants apparently failed to create an accident report despite a company policy requiring that such a report be created. Mead v. Papa Razzi, 899 A.2d 437, 442 (R.I. 2006).

§ 5.4.4

Conducting Employee Interviews

After discussing the matter with management, conducting preliminary interviews, and reviewing documents, counsel should plan to interview the people he or she has identified as being implicated in the underlying events or who are otherwise likely to have relevant information. Before interviewing anyone, however, there are several steps to take and a few points to keep in mind.

(a)

Have a Plan

Develop a plan for interviewing company witnesses—perhaps with the assistance of in-house counsel or the company manager responsible for the investigation—and use a company personnel list or organizational chart listing who will be interviewed and in what sequence. The order and timing of interviews will depend on • the type of investigation, • the sensitivity of the information sought, • the likelihood of leaks that could compromise counsel’s efforts to obtain accurate information, and • the interviewee’s role in the events and the company. The other benefit of a detailed plan is that, although counsel never should guarantee that an employee will be interviewed only once, it can be extremely disruptive for counsel to pursue multiple interviews of the same corporate employee. Forethought and planning will allow counsel to minimize that risk.

(b)

Consider Who Will Do the Interviewing and Who Will Attend

Whenever possible, lawyers should conduct interviews. Lawyers will better understand the legal ramifications of the interviewee’s answers and how to handle privilege and other issues.

5–30

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

Practice Note Resist the temptation, however, to have in-house counsel interview employees. While it may appear more economical and convenient, there are risks. As noted above, if corporate counsel is also an officer with managerial functions, the company may not be able to claim any privilege with regard to the interviews conducted. It is the substance of the communication and its purpose that determine whether or not it is privileged (i.e., was the communication made for the purpose of securing legal advice?). It is possible, however, that the multiple roles of in-house counsel may affect a court’s analysis as to whether the communication was made as part of a business communication or for the purpose of securing legal advice. Furthermore, in-house counsel also may be too close to the events or persons involved. See, e.g., Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009).

One of counsel’s staff should attend the interview as well. This person should take notes (avoiding verbatim transcriptions) while the attorney focuses on the interviewee and, if needed, can later serve as a witness to what was said. Counsel should also consider having experts or consultants attend the interview if it may include subjects within their expertise. This will allow counsel to better interpret the information he or she gets from the interviewee and ask probative follow-up questions.

(c)

Make an Outline

Counsel’s interviews will proceed much more smoothly and yield far more useful information if an outline is drafted beforehand. The benefits of an outline here are akin to outlining a deposition; the questioning will proceed in a more logical and orderly fashion, counsel will not inadvertently omit important subjects, and documents can be reviewed at appropriate intervals. The outline will better enable counsel to memorialize the interview and identify remaining information gaps. There is no standard formula for preparing such an outline; counsel should prepare it in whatever form is most comfortable to use and most likely to ensure comprehensive treatment of the relevant issues. Counsel should keep in mind the following:

5–31

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

• Know why you are conducting the interview. Consider the precise goals of the interview beforehand and the key information you seek. Shape the outline around these concerns. • Identify and review any documents you wish to show the interviewee. These can range from memoranda authored by the interviewee to accounting records to handwritten notes. Documents may serve to refresh the interviewee’s memory and, if necessary, keep him or her “honest” by demonstrating that counsel has a firm handle on the events, the substance of the documents, and what the documents reveal about the events. • Incorporate appropriate advisories to the witness. Your outline should include reminders to give the interviewee the warnings and other information noted in § 5.4.4(e), below. • Use consultants where appropriate. If needed, have your expert or other consultant help you interpret documents and craft questions beforehand.

(d)

Consider Where the Interview Will Occur

In most instances, the interview will yield more and better information if the employee is not overanxious. Consider where you will conduct the interview. The employee’s own office, for example, may make the employee more comfortable with the process. That location also will allow the interviewee to retrieve documents that appear relevant but counsel does not yet have—a not uncommon occurrence. It also may give counsel insight as to further document sources or other pertinent matters. Counsel should also consider contacting the interviewee personally beforehand to introduce himself or herself and schedule the interview. The initial contact may help put the witness at ease. Of course, there may be instances in which making the interviewee comfortable is not the preferred strategy. On those occasions, the interview may be scheduled at counsel’s office or in the office of in-house counsel or a member of senior management. If counsel thinks an employee may change his or her statement later, counsel might consider—with management’s approval and with notification to the interviewee—recording the interview or having a stenographic transcript made. This should be done in limited circumstances, however, because a verbatim transcription may be more vulnerable to discovery than one with counsel’s mental impressions interspersed. With few exceptions, a verbatim transcript would almost certainly be discoverable in a criminal prosecution.

5–32

CONDUCTING INTERNAL INVESTIGATIONS

(e)

§ 5.4

Steps at the Start of the Interview

Counsel must make a few points clear and keep certain issues in mind when starting the interview.

Defining the Attorney-Client Relationship Counsel must tell the interviewee, at the start of the interview, that counsel represents the company, not the interviewee, and that to the extent the substance of the interview may be subject to the attorney-client privilege, the privilege may be asserted by the company, not the employee. An interviewee who reasonably forms the belief that counsel represents him or her may later be able to claim the attorney-client privilege for the content of the interview and prevent counsel from disclosing it, even if the company itself wishes to do so. See, e.g., United States v. Hart, No. Crim. A. 92-219, 1992 WL 348425, at *1–2 (E.D. La. Nov. 16, 1992); Rosman v. Shapiro, 653 F. Supp. 1441 (S.D.N.Y. 1987). This may limit the company’s options at a later stage and hinder its ability to cooperate with governmental authorities if it chooses to do so (for example, by disclosing evidence obtained from employee interviews to avoid an indictment against the company). Confusion over whom the attorney represents may also create a problem of disqualification if a conflict later arises between the interests of the company and those of the employee. Each interviewee should review and sign an acknowledgment form making clear counsel’s relationship to the company and the employee, as well as the other points identified below.

Purpose of the Interview Counsel must also establish the factual predicates that will later enable the company to assert a claim of privilege with respect to counsel’s interview. See Upjohn Co. v. United States, 449 U.S. 383, 391–92 (1981). See also § 5.4.2(d), above. In Langley v. Providence College, No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence College, No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009), the court concluded from a review of interview tapes that counsel for Providence College did nothing to suggest that the purpose of the interviews was to provide legal advice or for the interviews to remain confidential. It appeared instead that the interviewers were engaged in a factual investigation only and were memorializing the facts known to bystander witnesses. In order to avoid a misunderstanding as to the purpose of an investigation conducted by counsel whose purpose is to provide legal advice, counsel should 5–33

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

make clear that the purpose of the interview is to assist counsel in providing legal advice to the company in anticipation of litigation. The interviewee should be told to keep the interview confidential although the employee has no claim of privilege regarding its content. Counsel should not lead an employee to believe that his or her comments will not be shared with management. These cautionary points should be included in the written acknowledgment mentioned above. Practice Note The company’s ability to assert privilege effectively depends, at least in part, on its diligent efforts to keep privileged communications confidential. Failure to inform an employee of the company’s insistence on confidentiality could frustrate the company’s efforts to maintain the privilege in the event of an unauthorized disclosure of privileged information by the employee.

Separate Counsel Considerations Under circumstances where there may be a conflict between the interests of a corporation and its employee, the attorney for the corporate client should advise the employee that he or she may wish to retain separate counsel to represent his or her interests. This is discussed in the commentary to R. Prof. C. 1.13, which discusses counsel’s obligations and states that “[w]hether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case.” In deciding whether a separate counsel warning is appropriate or necessary, counsel should consider the following questions: • Is there any indication that this employee’s interests genuinely conflict with that of the company? • Is there evidence of the employee’s culpability? • Is it likely that this employee would be prosecuted if the results of the investigation were disclosed?

Indemnification Companies often indemnify employees for the cost of separate representation, either because of a preexisting obligation to do so or because the company chooses to bear that expense for its employees. Counsel should broach this subject with management before starting interviews. If the company will cover the cost of separate representation, counsel should inform the interviewee. As a practical matter, this often is a decisive consideration for the employee, and the 5–34

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

company’s willingness to do this may prompt him or her to be more cooperative with the company’s efforts. Practice Note Aside from separate legal counsel, if the employee is a member of a union he or she may also have the right to have a union representative present during the interview. See NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). The representative, however, cannot interfere with the interview process.

Employee Communication with Government Investigators If counsel anticipates a government investigation, he or she should be careful not to advise any company officer or employee not to cooperate with government investigators. In the written acknowledgment the interviewee is asked to sign, counsel may include a statement that the interviewee has not been advised by counsel or the company to refrain from speaking to government authorities. With this admonition in mind, it is important to note, however, that counsel may—and perhaps should—advise the employee that he or she is under no obligation to speak to government investigators absent a lawful subpoena. Indeed, counsel may alert the employee about the possible pitfalls of giving statements to government authorities without first being adequately prepared, that is, • consulting with his or her own counsel (or even counsel for the company), • reviewing pertinent documents, or • taking time to reflect about whether it is in his or her best interest to speak to investigators without first being subpoenaed. Counsel may also request that the employee inform counsel promptly if the employee is contacted by government investigators or receives a subpoena for documents or oral testimony. Counsel also may, and indeed should, alert the employee not to disclose communications that are subject to the attorney-client privilege. Practice Note Given the potential stakes involved, including the potential for being accused of witness tampering, see 18 U.S.C. §§ 1503–1504, 1512– 1513, counsel should familiarize himself or herself with the case law setting forth the legal and ethical considerations governing this area of practice.

5–35

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

Ethics Commentary Rule 1.6 of the Rhode Island Rules of Professional Conduct addresses an attorney’s obligation to maintain the confidentiality of client communications. In comment 1 of that Rule, the distinction between the attorney-client privilege and the obligation of confidentiality is explained. It states as follows: [T]he attorney client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. The comments to Rule 1.6 also provide guidance concerning a lawyer’s obligation when ordered to reveal confidential information by a tribunal or government entity at comment 6. Absent informed consent of a client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4.

(f)

The Interview Itself

As for the interview itself, follow the outline and keep questions short and simple. There are certain areas you should be sure to cover beyond directly substantive issues. For example, if the employee is implicated in misconduct, attempt to elicit facts concerning whether the employee’s actions were performed in the course of his or her duties as an employee. Second, if there are lingering questions regarding whether counsel has received all relevant documents, ask “keeper of records” type questions to uncover further sources of information.

5–36

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.4

The content of the interview will vary with the circumstances prompting the investigation, but there are some basic, generally applicable principles: • As noted above, keep in mind the purpose of the interview. Collect accurate information on the discrete set of topics relating to the investigation. • Pursue details. Witnesses tend to respond to questions in generalities. To build a useful picture of events, counsel must pursue dates, times, locations, identities of persons present, and other hard data. If the interviewee refers to documents, be sure you know what they are and where to find copies. If there are references to persons outside the organization, attempt to obtain contact information for those people. Finally, counsel should explore motivations. Why did the interviewee act in a particular way? Why does he or she think others behaved in a particular way? • Keep track of leads the interviewee provides. Employee interviews nearly always prompt counsel to interview additional people or review additional documents identified during the conversation. Counsel’s partner at the interview—whether a lawyer, paralegal, or consultant—should keep track of these references. • Although the outline is important, feel free to stray from it. If the interviewee raises issues counsel has not considered, counsel should explore them in depth and return to the outline later. • As in a deposition, avoid the tendency to ask too many leading questions. You want the interviewee’s version of events, not an account influenced by the questions asked. Elicit a narrative from the interviewee and then focus on key points he or she raises. • At the close of the interview leave open the possibility that you may contact the interviewee again. Ask if you may give him or her a call later if, after reviewing the notes of the meeting, you have further questions.

(g)

Preserving Your Impressions of the Interview

Counsel should consider how best to preserve the information gathered during the interview. The normal practice is to take the notes from the interview, combined with counsel’s recollections and input from the third person who attended, and draft a memorandum. Counsel should be aware of the extent to which the attorney-client privilege and the work product doctrine may or may not protect 5–37

§ 5.4

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

the information contained in the memorandum. As discussed above, facts are not protected from disclosure merely because they are gathered by an attorney, and must be distinguished from an attorney’s mental impressions, thought processes, opinions, and legal theories.

§ 5.4.5

Reporting Your Findings

At some point, counsel must report the results of the internal investigation to the client. The point at which to conclude the investigation, however, is not always obvious. If counsel’s document collection and interviewing were systematic and well organized, counsel will be in a better position to determine when the investigation has reached the point of diminishing returns. As with interview memoranda, counsel must give careful thought to the decision to draft a written report of the investigation. If appropriate, counsel should conclude with recommendations for remedying existing problems and ensuring future compliance with all applicable laws, rules, and guidelines. The company may want several copies of counsel’s report. Dissemination should be limited to senior management, or to a handful of people at most. A log should be kept indicating the individuals to whom the report has been disseminated. Applicable privileges may be waived if the results of the report are distributed beyond corporate officers who need to know them. See Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1978). Consider having all relevant personnel sign an acknowledgment agreeing to keep the report confidential. Outside or in-house counsel should also collect and retain all copies in a secure location at the company or counsel’s offices.

§ 5.5

WHAT TO DO AFTER THE INVESTIGATION

If the internal investigation yields information of little consequence, management will be relieved and counsel’s findings will be filed away. If the investigation identifies certain employees who engaged in—or are engaged in—criminal behavior or misconduct exposing the company to liability or prosecution, the company must then decide what to do. Labor and employment law concerning employee discipline and termination is beyond the scope of this chapter, and the best advice will vary with the type of misconduct involved. Some basic factors to keep in mind in deciding how to advise the company client, however, are the following:

5–38

CONDUCTING INTERNAL INVESTIGATIONS

§ 5.5

• If the issue has not been decided already, management should consider whether to provide counsel to employees accused of wrongdoing. • If the company is planning to discipline or terminate persons implicated in wrongdoing, it should consider possible repercussions and make its decision promptly after the investigation concludes. Disciplinary action may make the disciplined persons less cooperative with further investigative efforts and draw the attention of government investigators. • If the company is in a regulated trade or industry, it may have to report instances of misconduct in filings with government authorities. Beyond the regulatory ramifications, statements in such filings may not be privileged. Also consider whether the company should preemptively submit the results of the internal investigation to the government to avoid prosecution or regulatory sanction. • Terminated officers or employees may file suit against the company under a variety of theories, including defamation and wrongful discharge. Also note federal and state whistle-blower laws protecting employees in certain circumstances. • Investors or shareholders may seek redress if the misconduct of a director, officer, or employee harmed the financial status of the company.

5–39

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

5–40

CONDUCTING INTERNAL INVESTIGATIONS

EXHIBIT 5A—Selected Bibliography The following sources are especially useful in researching issues relating to internal investigations: • Dan K. Webb, Robert W. Tarun & Steven F. Molo, Corporate Internal Investigations (Law Journal Seminars Press 1993 & Supp. 2000). • Joel M. Androphy, White Collar Crime (Shepards/McGraw-Hill 1992). • Corporate Compliance vol. 2 (Practising Law Institute 2000). • Jerome G. Snider & Howard A. Ellins, Corporate Privileges and Confidential Information (Law Journal Press 1999). • Robert F. Hoyt & Joseph K. Brenner, “Investigating the Investigators,” 30 Litigation 43 (2004).

5–41

A PRACTICAL GUIDE TO DISCOVERY IN RHODE ISLAND

5–42

CHAPTER 6

Obtaining Information from Rhode Island State and Local Government Sources Rebecca Tedford Partington Michael Field § 6.1

§ 6.2

Rhode Island’s Access to Public Records Act .................... 6–1 § 6.1.1

Statement of Purpose............................................. 6–1

§ 6.1.2

General Description .............................................. 6–2

§ 6.1.3

When Does the Access to Public Records Act Apply? ............................................................ 6–2 (a)

Definition of “Public Body”—Statutory Definition ..................................................... 6–2

(b)

“Public Body”—Holdings and Decisions .... 6–3

(c)

“Public Record”—Definition ....................... 6–4

(d)

Exemptions................................................... 6–4

Procedures for Access to Public Records ......................... 6–16 § 6.2.1

Access to Documents .......................................... 6–16

§ 6.2.2

Cost of Copying and Inspecting Public Records .................................................... 6–18

§ 6.3

Remedies Available............................................................. 6–20

§ 6.4

Commercial Use of Public Records .................................. 6–22

§ 6.5

Continuing Access .............................................................. 6–22

EXHIBIT 6A—Sample Request Letter .......................................... 6–23 6–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

EXHIBIT 6B—Sample Denial Letter..............................................6–25 EXHIBIT 6C—State Agencies Contact Information .....................6–27 EXHIBIT 6D—State Government Contact Information...............6–37

6–ii

CHAPTER 6

Obtaining Information from Rhode Island State and Local Government Sources Rebecca Tedford Partington Michael Field

Scope Note This chapter sets forth Rhode Island’s requirements regarding obtaining information from government agencies and offices. Procedures for obtaining such information as well as remedies are highlighted. Sample correspondence and lists of resources are featured.

§ 6.1

RHODE ISLAND’S ACCESS TO PUBLIC RECORDS ACT

§ 6.1.1

Statement of Purpose

“The public’s right to access to public records and the individual’s right to dignity and privacy are both recognized to be principles of the utmost importance in a free society. The purpose of this chapter is to facilitate public access to public records. It is also the intent of this chapter to protect from disclosure information about particular individuals maintained in the files of public bodies when disclosure would constitute an unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-1. Rhode Island provides a statutory right to privacy in R.I. Gen. Laws § 9-1-28.1 et seq. That section protects, among other things, “the right to be secure from unreasonable intrusion upon one’s physical solitude or seclusion,” R.I. Gen. Laws § 9-1-28.1(a)(1), and “the right to be secure from unreasonable publicity given to one’s private life,” R.I. Gen. Laws § 9-1-28.1(a)(3).

6–1

§ 6.1

§ 6.1.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

General Description

Rhode Island’s Access to Public Records Act (APRA) is a chapter of the Rhode Island General Laws designed to provide access to public documents so that the public may participate in their government and so that government will be more accountable to the people. By providing access to public records, public bodies receive input from citizens concerning the decisions being contemplated. By observing and participating in their government’s decisions, citizens of Rhode Island gain increased accountability from their elected and appointed representatives. The APRA provides for this input and accountability by assuring that public records are available to the public. The APRA does, however, recognize that certain types of records are not available for public inspection. The exceptions to the APRA are specifically defined to protect the narrow interests served by the exceptions.

§ 6.1.3

When Does the Access to Public Records Act Apply?

The APRA ensures the public’s right to access “public records” maintained by “public bodies.” As with most statutes, these terms have a specific legal definition within the APRA.

(a)

Definition of “Public Body”—Statutory Definition

The APRA defines a “public body” as any executive, legislative, judicial, regulatory, or administrative body of the state, or any political subdivision thereof; including, but not limited to, any department, division, agency, commission, board, office, bureau, authority, any school, fire, or water district, or other agency of Rhode Island state or local government which exercises governmental functions, any authority as defined in § 42-35-1(b), or any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency. R.I. Gen. Laws § 38-2-2(1).

6–2

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.1

The following entities are considered public bodies: Rhode Island Industrial Building Authority, Rhode Island Recreational Building Authority, Rhode Island Port Authority and Economic Development Corporation, Rhode Island Industrial Facilities Corporation, Rhode Island Public Buildings Authority, Rhode Island Housing and Mortgage Finance Corporation, Rhode Island Solid Waste Management Corporation, Rhode Island Public Transit Authority, Rhode Island Student Loan Authority, Howard Development Corporation, Water Resources Board, Rhode Island Health and Educational Building Corporation, Rhode Island Higher Education Assistance Authority, Rhode Island Turnpike and Bridge Authority, Blackstone Valley District Commission, Narragansett Bay Water Quality Management District Commission, their successors and assigns, and any body corporate and politic with the power to issue bonds and notes, which are direct, guaranteed, contingent, or moral obligations of the sate, which is hereinafter created or established in Rhode Island. R.I. Gen. Laws § 42-35-1(2).

(b)

“Public Body”—Holdings and Decisions

Judicial bodies are among the public bodies subject to the APRA. However, only records pertaining to the performance of their administrative functions can be compelled under the APRA. Court records in a particular judicial proceeding do not relate to a court’s administrative function and, therefore, such records are not subject to the APRA. R.I. Gen. Laws § 38-2-2(4)(i)(T); Info. Ctr., Inc. v. Spina, PR 97-10. (References are to attorney general advisory opinions and are available at http://www.riag.ri.gov.) Records of judicial proceedings may be sealed from public scrutiny pursuant to state statute or order of the court, notwithstanding the provisions of the APRA. See, e.g., R.I. Gen. Laws § 8-10-21; R.I. Gen. Laws § 11-37-8.5; State v. Cianci, 496 A.2d 139 (R.I. 1985). An alumni organization of a public school is a public body for purposes of the APRA if the organization is acting on behalf of a public agency. In re University of Rhode Island, PR 00-05. The Volunteer Fire Association is not a public body for purposes of the Open Meetings Act, but it is a public body under the APRA. Schmidt v. Ashaway Fire District et al., PR 97-09. The APRA only creates a cause of action for an individual or entity denied access to records maintained by a public body against the public body that is the custodian of the records. Robinson v. Malinoff, 770 A.2d 873 (R.I. 2001). A councilperson filing an APRA complaint in her individual capacity was not the proper party to file a complaint when the entire town council, in its official capacity, was denied access. Canavan v. City of Central Falls, PR 00-18. 6–3

§ 6.1

(c)

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

“Public Record”—Definition

The APRA defines a “public record” as all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, computer stored data (including electronic mail messages, except specifically for any electronic mail messages of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities) or other material regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. R.I. Gen. Laws § 38-2-2(4)(i). Records maintained pursuant to the APRA shall not be replaced or supplemented with the product of a “real translation reporter.” R.I. Gen. Laws § 38-2-3.1.

(d)

Exemptions

The APRA requires a two-step inquiry to determine whether a requested record is a public record or whether the requested record is exempt from public disclosure. First, a public body must determine whether a requested record falls within one of the twenty-five enumerated categories that are exempt from public disclosure. R.I. Gen. Laws § 38-2-2(4)(i)(A)–(Y). Second, if the requested record does not fall within one of the twenty-five categories, a public body must conduct a balancing test weighing the privacy interest of the affected individual against the public interest in disclosure. Direct Action for Rights & Equality v. Gannon, 713 A.2d 218 (R.I. 1998).

The Twenty-Five Exceptions If the requested record falls within one of the twenty-five enumerated exceptions, the requested record is exempt from public disclosure and no further inquiry is required. A balancing test is not performed. The twenty-five enumerated exceptions are listed below.

6–4

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.1

Records Identifiable to an Individual (A)(I) All records that are identifiable to an individual applicant for benefits, client, patient, student, or employee, including, but not limited to, personnel, medical treatment, welfare, employment security, pupil records, all records relating to a client/attorney relationship and to a doctor/patient relationship, and all personal or medical information relating to an individual in any files, including information relating to medical or psychological facts, personal finances, welfare, employment security, student performance, or information in personnel files maintained to hire, evaluate, promote, or discipline any employee of a public body. With respect to employees, the name, gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and other remuneration in addition to salary, job title, job description, dates of employment and positions held with the state or municipality, work location, business telephone number, the city or town of residence, and the date of termination shall be public. This exemption “expresses the Legislature’s clearly stated intention to exempt from public disclosure those records concerning a particular and identifiable individual, and in particular, when that disclosure would constitute an unwarranted invasion of that person’s privacy.” Robinson v. Malinoff, 770 A.2d 873 (R.I. 2001). Request for internal affairs documents relating to the investigation of an identifiable police officer were not public records since the requested records related to an identifiable individual and could not be redacted. In re North Providence Police Department, PR 01-02. Statute exempting all records identifiable to an individual applicant for benefits, client, patient, student, or employee was not applicable since the requested police reports already redacted the names of the complainants and the police officers. The Rake v. Gorodetsky, 452 A.2d 1144 (R.I. 1982). Since the management study report specifically related to the job performance of a single readily identifiable individual, the report was not a public record because even if all references to proper names were deleted, the employee’s identity would still be abundantly clear. Pawtucket Teachers Alliance Local No. 920, AFT, AFL-CIO v. Brady, 556 A.2d 556 (R.I. 1989). 6–5

§ 6.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

A record identifying the number of teachers granted provisional certificates does not specifically identify an employee, and therefore constitutes a public record. Offer v. Rhode Island Department of Education, PR 99-04. The home address of all certified public school teachers is not a public record since disclosure would constitute an unwarranted invasion of personal privacy. Burns v. Department of Education Coventry School District, PR 98-11. Job applicants’ résumés are exempt from public disclosure since these records contain information maintained to hire an employee. Miranda v. Rhode Island Ethics Commission, PR 95-05. Parole board records are exempt from public disclosure since these records contain personal or medical information relating to an individual. Bernard v. Vose, 730 A.2d 30 (R.I. 1999). A former employee’s employment contract is not a public record since the contract is a record identifiable to an individual employee maintained to hire, evaluate, promote, or discipline an employee and does not otherwise fall within the designated categories mandating public disclosure. Prybla v. City of Woonsocket, PR 99-05; Kelly/Narragansett Times v. South Kingstown School Department, PR 96-05. A severance agreement between a town employee and the school district is a record “identifiable to an individual . . . employee,” and therefore not a public record except for the fourteen categories enumerated. Henley v. South Kingstown School District, et al., PR 01-02. The APRA does not require the public disclosure of an employee’s starting gross salary and starting job description, but instead requires the disclosure of an employee’s current gross salary and current job description. Graziano v. Department of Administration, PR 00-01. Lists identifying employees who received layoff notices, but who were not actually terminated, were not public records since the lists identified specific employees who were not terminated. A list identifying employees who were terminated was a public record. Providence Journal Company v. Sundlun, 616 A.2d 1131 (R.I. 1992) (“with respect to employees, the name . . . and date of termination shall be public”). Town expenses related to a police chief obtaining a law degree represents “other remuneration” and therefore is a public record. Mague v. Town of Charlestown, PR 96-12.

6–6

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.1

A school department did not violate the APRA by failing to disclose the names and addresses of teachers. The APRA only requires disclosure of, among other information, an employee’s name and town or city of residence. McCormick v. Providence School Department, PR 98-17. Breakdowns of all leave time taken by a town employee, including the dates and the reasons for leave, is not a public record. Douglas v. Town of Westerly, PR 98-09. The Department of Environmental Management did not violate the APRA by denying a request to inspect an employee’s time card since this information is identifiable to an individual employee and not otherwise delineated as a public record. Tierney v. Department of Environmental Management, PR 98-27. Correspondences exchanged between the auditor general and a law firm were exempt from public disclosure because these documents related to the attorneyclient relationship. Graziano v. Rhode Island Auditor General, PR 98-01. Documents reflecting the total number of hours billed by a law firm and documents reflecting the total amount of legal fees paid to a law firm were public documents. The narratives describing the type of legal work performed relates to the attorney-client relationship and is therefore exempt from public disclosure. Graziano v. Rhode Island Lottery Commission, PR 98-19.

Pension Records of Retirement Systems Members (A)(II) The pension records of all persons who are either current or retired members of the retirement systems established by the general laws as well as all persons who become members of those retirement systems after June 17, 1991, shall be open for public inspection. “Pension records” include all records containing information concerning pension and retirement benefits of current and retired members of the retirement systems established in title 8 (courts), title 36 (public officers and employees), title 42 (state affairs and government), and title 45 (towns and cities), and future members of the system, including all records concerning retirement credits purchased and the ability of any member of the retirement system to purchase retirement credits. “Pension records” excludes all information regarding the medical condition of any person and all information identifying the member’s designated beneficiary or beneficiaries.

6–7

§ 6.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

A document relating to a town employee’s disability pension was not a public record since this document contained medical information relating to the employee. Mague v. Charlestown Town Council, PR 98-27.

Trade Secrets and Privileged or Confidential Information (B) Trade secrets and commercial or financial information obtained from a person, firm, or corporation that is of a privileged or confidential nature. A document submitted as a result of a request for proposals that reveals the final bid, as well as the methodology and the costs to arrive at the final bid, was not a public record. Cahill v. Housing Authority of the City of Pawtucket, PR 00-09. If a request is made for financial or commercial information that a person is obliged to provide to the government, it is exempt from disclosure if the disclosure is likely either to impair the government’s ability to obtain information in the future, or to cause substantial harm to the competitive position of the person from whom the information was obtained. If a request is made for financial or commercial information that is provided to the government on a voluntary basis, it is exempt from disclosure if the information “is a kind that would customarily not be released to the public by the person from whom it was obtained.” The Providence Journal Company v. Convention Center Authority, 774 A.2d 40 (R.I. 2001).

Child Custody, Adoption, Illegitimate Births, and Juvenile Proceedings Before the Family Court (C) Child custody and adoption records, records of illegitimate births, and records of juvenile proceedings before the Family Court.

Law Enforcement Agency Records (D) Records maintained by law enforcement agencies for criminal law enforcement and all other records relating to the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal investigation by any law enforcement agency are not public records, but only to the extent that disclosure could:

6–8

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.1

(a) reasonably be expected to interfere with investigations of criminal activity or with enforcement proceedings; A “mug shot” is not a public record since disclosure could reasonably be expected to interfere with enforcement proceedings. Setera v. City of Providence, PR 95-29. If allowing a criminal defendant access to certain documents will circumvent the reciprocal discovery process, and therefore could reasonably be expected to interfere with enforcement proceedings, these documents would not constitute public records. Documents relating to the initial arrest report and the narrative of an adult are public records. In re Newport Police Department, ADV PR 99-03. (b) deprive a person of a right to a fair trial or an impartial adjudication; (c) reasonably be expected to constitute an unwarranted invasion of personal privacy; Investigation reports concerning the suicide of an identifiable individual were not public records since disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy” to the decedent’s family. Casey v. Johnston Police Department, PR 02-02. (d) reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority, or any private institution that furnished information on a confidential basis, or the information furnished by a confidential source; (e) disclose techniques, procedures, or guidelines for law enforcement investigations or prosecutions; or (f) reasonably be expected to endanger the life or physical safety of any individual. Records relating to management and direction of a law enforcement agency and records or reports reflecting the initial arrest of an adult and the charge or charges brought against an adult shall be public. Redacted reports concerning disciplinary actions taken as a result of recommendations made by the Hearing Officers’ Division is a public record since these records relate to the management and the direction of a law enforcement agency. Direct Action for Rights and Equality v. Gannon, 713 A.2d 218 (R.I. 1998). 6–9

§ 6.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Records concerning whether a police chief imposed or modified the recommendation of the internal affairs officer relates to the management and the direction of a law enforcement agency and is therefore a public record. In re Johnston Police Department, PR 00-01. The initial arrest reports of an adult, and the arrest narratives, are public records, although certain information may be redacted upon an appropriate balancing test. In re Narragansett Police Department, PR 99-02.

Records Unavailable to Opposing Party in Litigation (E) Any records that would not be available by law or rule of court to an opposing party in litigation. If a court in which litigation is ongoing has made a determination based upon the laws or rules of court that a document will not be required to be disclosed, then that ruling precludes production of those same documents under the APRA. Hydron Labs., Inc. v. Dep’t of the Attorney Gen., 492 A.2d 135 (R.I. 1985).

Scientific and Technological Secrets, Security Plans (F) Scientific and technological secrets and the security plans of military and law enforcement agencies, the disclosure of which would endanger the public welfare and security.

Anonymous Charitable Contributors (G) Any records that would disclose the identify of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested.

Labor Negotiations or Collective Bargaining (H) Reports and statements of strategy or negotiation involving labor negotiations or collective bargaining. Transcripts to an ongoing arbitration hearing are exempt from public disclosure since these transcripts contain “reports and statements of strategy or negotiation including labor negotiations or collective bargaining.” Cranston United Taxpayers v. City of Cranston, PR 99-19.

6–10

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.1

Investment or Borrowing of Public Funds (I) Reports and statement of strategy or negotiation with respect to the investment or borrowing of public funds, until such time as those transactions are entered into.

Minutes of Meeting of Public Body Not Required to Be Disclosed (J) Any minutes of a meeting of a public body not required to be disclosed pursuant to chapter 46 of title 42, the Open Meetings Act. Minutes of an executive session meeting sealed pursuant to the Open Meetings Act are exempt from public disclosure. Morra v. East Providence Tax Assessors, PR 99-06; Gorman v. Tiogue Fire District, PR 97-04. Executive session minutes that were not sealed pursuant to the Open Meetings Act were public records. A public body could still redact portions of the executive session minutes that were otherwise exempt from public disclosure pursuant to the APRA. Graziano v. Rhode Island Board of Nurse Registration & Nursing Education, PR 98-16.

Preliminary Documents (K) Preliminary drafts, notes, impressions, memoranda, working papers, and work products; provided, however, any documents submitted at a public meeting of a public body shall be deemed public. A preliminary lease agreement was a public record since the lease agreement was submitted and discussed at an open meeting of the town council. Shuttert v. Coventry Town Council, PR 99-07. Documents outlining the town clerk’s duties versus the administrative assistant’s duties were public records because the requested documents were submitted at an open meeting of the town council. Marcello v. Town of Scituate, PR 99-08.

Examination Data (L) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment or promotion, or academic examinations; provided, however, that a person 6–11

§ 6.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

shall have the right to review the results of his or her examination.

Correspondence of Elected Officials (M) Correspondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.

Real Estate Appraisals, Engineering, or Feasibility Estimates and Evaluations (N) The contents of real estate appraisals, engineering, or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned; provided the law of eminent domain shall not be affected by this provision.

Tax Returns (O) All tax returns. A copy of an estate tax return was exempt from public disclosure. Howard v. Rhode Island Estate Tax Division, PR 98-14.

Investigatory Records of Public Bodies (P) All investigatory records of public bodies, with the exception of law enforcement agencies, pertaining to possible violations of statute, rule, or regulation other than records of final actions taken provided that all records prior to formal notification of violations or noncompliance shall not be deemed to be public. A document compiled in the course of a Department of Environmental Management Division of Compliance and Inspection investigation is exempt from public disclosure since this record does not represent final action. Bowden v. Rhode Island Department of Environmental Management, PR 98-26.

6–12

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.1

A public body’s response to an APRA complaint is exempt from public disclosure since the requested record represents an investigatory record and does not constitute final action. Gormally v. MHRH, PR 95-02. Notice of a probable violation does not constitute final action and is therefore exempt from public disclosure. Moran v. Public Utility Commission, PR 99-01. Document forwarded from the Economic Development Corporation to the Governor’s Budget Office was not a preliminary memorandum or working paper and must be disclosed. Sheehan v. Economic Development Corporation, PR 01-03.

Test Scores on Professional Certification and Licensing Examinations (Q) Records of individual test scores on professional certification and licensing examinations; provided, however, that a person shall have the right to review the results of his or her examination.

Requests for Advisory Opinions (R) Requests for advisory opinions until such time as the public body issues its opinion.

Confidential Records and Information (S) Records, reports, opinions, information, and statements required to be kept confidential by federal law or regulation or state law, or rule of court. Emergency 911 telephone call tapes are not public records. In re Emergency 911 Uniform Telephone System, PR 02-01. All police records relating to the arrest, detention, apprehension, and disposition of any juvenile are not public records. R.I. Gen. Laws § 14-1-64; In re Newport Police Department, PR 99-03. A police department that deleted information from an arrest booking report concerning the arrest of a juvenile suspect did not violate the APRA. Woonsocket Call v. Smithfield Police Department, PR 95-07. Records of convictions or probations that have been expunged are not public records. R.I. Gen. Laws § 12-1.3-4(c); In re Newport Police Department, PR 99-03.

6–13

§ 6.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

An individual’s Bureau of Criminal Investigation records are exempt from public disclosure. In re Narragansett Police Department, PR 00-02. The Division of Motor Vehicles did not violate the APRA by failing to disclose a driver’s Social Security number since disclosure would constitute an unwarranted invasion of personal privacy and is exempt from disclosure by the Driver’s Privacy Protection Act. Marrier v. Division of Motor Vehicles, PR 95-09. A driver’s automobile accident report is exempt from public disclosure. R.I. Gen. Laws § 31-26-13. A police officer’s automobile accident report may be a public record subject to otherwise applicable exceptions. Information constituting an unwarranted invasion of personal privacy, such as an individual’s address, Social Security number, and injuries incurred, may be redacted. Anderson v. Providence Police Department, PR 98-05. The Confidentiality of Health Care Communications and Information Act prohibits a third party, such as the Division of Motor Vehicles, from disclosing information relating to a person’s health-care history, diagnosis, condition, treatment, or evaluation. R.I. Gen. Laws § 5-37.3-3. Therefore, health-care information on an individual’s application for a handicap parking permit is exempt from public disclosure. In re Division of Motor Vehicles, PR 99-01. The Driver’s Privacy Protection Act prohibits the Division of Motor Vehicles from disclosing any personal information, such as “information that identifies an individual, including an individual’s photograph, Social Security number, driver identification number, name, address (but not the 5 digit zip code), telephone number, and medical or disability information.” R.I. Gen. Laws § 27-493.1(c)(1); In re Division of Motor Vehicles, PR 99-01. Records relating to an investigation conducted by the Ethics Commission are exempt from public disclosure. R.I. Gen. Laws § 36-14-12(c)(6); Cianci v. Rhode Island Ethics Commission, PR 99-03.

Judicial Bodies’ Administrative Records (T) Judicial bodies are included in the APRA, but only in respect to their administrative function, provided that records kept pursuant to chapter 16 of title 8, the Commission on Judicial Tenure and Discipline, are exempt from disclosure. Since court records relating to eviction proceedings do not relate to a court’s administrative function, these records are exempt from public disclosure. Info. Center, Inc. v. Spina, PR 97-10. 6–14

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.1

Library Records (U) Library records, which by themselves or when examined with other public records, would reveal the identity of the library user requesting, checking out, or using any library materials. A library membership list is a public record since the list does not identify a person who requests, checks out, or uses any library materials. In re Greenville Public Library, PR 00-02.

Teletext Printouts (V) Printouts from TELE-TEXT devices used by persons who are deaf or hard of hearing or speech impaired.

Insurance Division Records from Other States (W) All records received by the insurance division of the department of business regulation from other states, either directly or through the National Association of Insurance Commissioners, if those records are accorded confidential treatment in that state.

Credit Card Numbers (X) Credit Card Account numbers in the possession of State or local government.

Documentary Material, Answers to Written Interrogatories, or Oral Testimony Provided Under Subpoena (Y) Any documentary material, answers to written interrogatories or oral testimony provided under any subpoena issued under R.I. Gen. Law § 9-1.1-6 [the State False Claims Act].

Nonexempt Records If a requested record does not fall within one of the twenty-five exemptions, the requested document should be presumptively considered a public record. Nevertheless, even if the requested document does not fall within one of the twenty-five 6–15

§ 6.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

enumerated exceptions, it may be subject to redaction upon an appropriate balancing test weighing the public interest in disclosure against the privacy interest of the affected individual. Direct Action for Rights & Equality v. Gannon, 713 A.2d 218 (R.I. 1998); Providence Journal Co. v. Kane, 577 A.2d 661 (R.I. 1990). A witness’s or victim’s name may not be automatically redacted from a police report. Instead, a witness’s or victim’s name may be redacted only if the individual’s privacy interest outweighs the public interest in disclosure. This balancing test must be performed on a case-by-case basis and must take into consideration the specific facts of each situation. If a witness or victim requests anonymity, this request should be one factor in favor of redaction. In re Newport Police Department, ADV PR 99-03; In re Narragansett Police Department, ADV PR 99-02. Any reasonably segregable portion of a public record excluded by the APRA shall be available for public inspection after the deletion of the information that serves as the basis of the exclusion. R.I. Gen. Laws § 38-2-2(4)(ii).

Settlement of Legal Claims Settlement agreements of any legal claims against a governmental entity shall be deemed public records. R.I. Gen. Laws § 38-2-14.

§ 6.2

PROCEDURES FOR ACCESS TO PUBLIC RECORDS

§ 6.2.1

Access to Documents

The APRA permits a public body to establish procedures regarding access to public records, except that a written request for public records is not required where the documents sought are (a) available pursuant to R.I. Gen. Laws § 42-35-2, the Administrative Procedures Act, or (b) prepared for or readily available to the public. R.I. Gen. Laws § 38-2-3(c). Unless exempt from public disclosure, all records maintained or kept on file by any public body shall be public records and every person or entity shall have the right to inspect or copy those records at such reasonable times as may be determined 6–16

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.2

by the public body. No person shall be denied public records based upon the purpose for which the records are sought. R.I. Gen. Laws § 38-2-3(a), (h). A public body must allow a person or an entity either to inspect or photocopy public records. A procedure that requires a person or an entity to pay the cost of photocopying documents, and does not permit a person or an entity the opportunity to inspect documents, violates the APRA. Schmidt v. Ashaway Fire District, PR 98-24. A city can establish procedures limiting the maximum number of files that an individual can inspect at one time; however, the city may not establish procedures that limit the public’s right to inspect a maximum number of documents in any given day or hour. Burns v. City of Providence Assessor’s Office, PR 98-06 (policy limiting access to a maximum of five files per day improper); Coulter v. Town of Cumberland, PR 95-24A (policy limiting access to four files at any one time proper, provided access could be gained to unlimited number of files per day). If a requested public record is not available at the time a request is made (because the record is either in active use or in storage), the custodian of the record must inform the requesting individual of this fact and schedule an appointment for the citizen to examine the record as expeditiously as possible. R.I. Gen. Laws § 38-2-3(d). A budget committee did not violate the APRA by maintaining copies of its minutes in a locked filing cabinet within the town hall, provided the minutes were made available to the requesting individual within ten business days. Carroll v. Tiverton Budget Committee, PR 99-11. The APRA does not require a public body to reorganize, consolidate, or compile data that is not maintained in the form requested at the time the request was made, except where the records are in an electronic format and the public body would not be unduly burdened in providing such data. R.I. Gen. Laws § 38-2-3(f). The APRA does not require a public body to respond to inquiries for questions. Instead, the APRA requires that a public body respond to inquiries for public documents. Graziano v. Office of the Auditor General, PR 98-22. A town did not violate the APRA by failing to permit access to a list of candidates for the position of police chief since no list existed. Finnegan v. Town of Scituate, PR 97-02.

6–17

§ 6.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

A police department did not violate the APRA by failing to compile or to create documents that did not exist. Carrellas v. Portsmouth Police Department, PR 9912. Since information maintained within a computer could be retrieved using only a few keystrokes, a public body would not be unduly burdened in compiling data. DeCristofano v. Town of North Smithfield, PR 00-10. A town was not required to provide records in a particular computer text format when doing so would unduly burden the public body. Conley v. Town of West Greenwich, PR 00-21. Any person or entity requesting copies of public records may obtain the copies in any and all media that the public body is capable of providing. Any public body that maintains its records in a computer storage system shall provide any data properly identified in a printout or other reasonable format, if requested. Nothing in the APRA is intended to affect the public record status of information merely because it is stored in a computer. R.I. Gen. Laws § 38-2-3.

§ 6.2.2

Cost of Copying and Inspecting Public Records

The APRA permits a public body to assess three categories of charges for inspecting and copying public records. A public body may charge • a maximum of fifteen cents per page for a document copyable on common business or legal size paper; • a maximum of $15 per hour for search and retrieval, with the first hour free; and • no more than the reasonable actual cost for providing electronic records. R.I. Gen. Laws § 38-2-4. Also, prior to providing copies of public records, a public body must (a) provide an estimate of the charges assessed, (b) upon request, provide a detailed itemization of the costs for search and retrieval, (c) perform the search and retrieval of public documents within a reasonable amount of time, and

6–18

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.2

(d) provide a reduction or waiver of the cost for search and retrieval of public records upon a court order. R.I. Gen. Laws § 38-2-4. A public body violated the APRA by charging twenty-five cents per page for photocopies. Pursuant to the APRA, a public body may not charge more than fifteen cents per page, unless otherwise provided for in the Rhode Island General Laws. Diaz v. Tiverton Town Clerk, PR 98-21. See R.I. Gen. Laws § 34-13-9 (copies of recording instruments may be assessed a higher charge). The APRA does not require a public body to deliver public documents. For example, even though an individual is an inmate at the Adult Correctional Institution, this individual must make arrangements to obtain public records. D’Amario v. Town of Smithfield et al., PR 00-02. A public body may not charge a person or an entity for the cost of mailing public records. However, a public body may establish a procedure requiring that a person or an entity seeking to have public records mailed, provide a stamped selfaddressed envelope. In re Newport Police Department, ADV PR 99-03. A public body may not charge more than the reasonable actual cost for providing electronic records, such as audiotapes or videotapes. In re Newport Police Department, ADV PR 99-03. A public body may not charge more than the reasonable actual cost for providing remote (online) electronic access to land evidence records. In re City of Pawtucket, ADV PR 00-06. A public body may discard public records that are requested, but not retrieved. However, a person or an entity may once again request the same public records and a public body may assess charges only for “documents provided to the public.” A public body may require a person or an entity to prepay for the cost of public records. In re Town of Scituate, ADV PR 99-04. The town violated the APRA by failing to provide an estimate of the cost for photocopying and search and retrieval of public records. Morra v. East Providence Tax Assessors, PR 99-06. A fire district violated the APRA when it charged $125 per hour for the cost of search and retrieval conducted by its attorney. Gorman v. Coventry Fire District, PR 00-23.

6–19

§ 6.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The APRA requires that any denial of the right to inspect and/or copy records (a) be made in writing, (b) be made within ten (10) business days, except for “good cause” this time period may be extended for an additional twenty (20) business days (extension must be made in writing within the original ten (10) business days), (c) state the specific reasons for the denial, and (d) indicate that an appeal may be sought to the chief administrative officer of the public body, the Department of the Attorney General, or the Superior Court for the county in which the records are maintained. R.I. Gen. Laws § 38-2-7(a). A board violated the APRA by failing to provide access to the requested documents within ten business days, or otherwise failing to extend for “good cause” the time period to respond for an additional twenty business days. Raymond v. Glendale Board of Fire Wardens, PR 99-09. A town violated the APRA by failing to cite the specific reasons for denying access to the requested records. A statement that the requested document is not a public record, without more, does not comply with the APRA. Nye v. Town of Westerly, PR 95-21. Failure to respond to a request to inspect or copy public records within ten business days (or within a total of thirty business days if extended for “good cause”) shall be deemed a denial. Any reason not specifically set forth in the denial shall be deemed waived by the public body, except for “good cause” shown. R.I. Gen. Laws § 38-2-7(b).

§ 6.3

REMEDIES AVAILABLE

Any citizen or entity denied the right to inspect a record of a public body may file a review petition with the chief administrative officer of the public body, who must make a final determination within ten business days of the review petition’s submission. If the chief administrative officer determines that the record is not subject to public disclosure, the person or entity seeking disclosure may file a complaint with the Department of the Attorney General or with the Rhode 6–20

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

§ 6.3

Island Superior Court of the county where the record is maintained. R.I. Gen. Laws § 38-2-8. In order for the Department of the Attorney General to have jurisdiction over an APRA complaint, a person or an entity must request a specific record from a public body and be denied access to the requested record. The Department of the Attorney General does not respond to requests from citizens for advisory opinions, nor does it respond to hypothetical inquiries. Schmidt v. Ashaway Fire Association et al., PR 99-21. Since an APRA complaint filed with the Department of the Attorney General is the identical issue before the Rhode Island Superior Court, the Department of the Attorney General will not interfere with the judicial process and the public body’s responsibilities are subject to the Superior Court’s order. Dietz v. Board of Registration for Professional Land Surveyors, PR 99-17. The APRA is directed solely toward requiring disclosure by public agencies and does not provide a remedy to persons seeking to prevent public disclosure. Rhode Island Federation of Teachers, AFT, AFL-CIO v. Sundlun, 595 A.2d 799 (R.I. 1991). Nothing within the APRA shall prohibit any individual or entity from retaining legal counsel for the purpose of instituting proceedings for injunctive or declaratory relief in the Superior Court of the county where the record is maintained. R.I. Gen. Laws § 38-2-8(b). The public body has the burden to demonstrate that the record in dispute is not a public record. R.I. Gen. Laws § 38-2-10. If the Superior Court finds that a public body has violated the APRA, the court shall award reasonable attorneys fees and costs to a prevailing plaintiff, and if the public body is found to have wrongfully denied access to public records, order the public body to provide the record(s) at no cost to the prevailing party. If the Court finds that the plaintiff’s case lacked a grounding in fact or in existing law or in good faith argument for the extension, modification, or reversal of existing law, the Court may award attorneys fees and costs to the prevailing defendant, and shall impose a civil fine not exceeding one thousand dollars ($1,000) against a public body or official found to have committed a knowing and a willful violation. R.I. Gen. Laws § 38-2-9. 6–21

§ 6.4

§ 6.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

COMMERCIAL USE OF PUBLIC RECORDS

No person or entity may use information obtained from public records to solicit for commercial purposes or to obtain a commercial advantage over the party furnishing that information to the public body. R.I. Gen. Laws § 38-2-6. Commercial use of public records provision declared unconstitutional and should not be enforced. Rhode Island Association of Realtors, Inc., v. Whitehouse, 51 Supp. 2d 107, aff’d on other grounds, 199 F.3d 26 (1st Cir. 1999).

§ 6.5

CONTINUING ACCESS

All records initially deemed to be public records shall continue to be deemed public records whether or not subsequent court action or investigations are held pertaining to the matters contained in these records. R.I. Gen. Laws § 38-2-13. Records that are the subject of an ongoing investigation into possible violations of statute, rule, or regulation where final action has yet to be taken are not exempt from public disclosure pursuant to R.I. Gen. Laws § 38-2-2(4)(i)(P), provided that the requested records would have been deemed public records prior to the commencement of the investigation. In re University of Rhode Island, ADV PR 00-05.

6–22

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

EXHIBIT 6A—Sample Request Letter Dear (Records Custodian): Pursuant to the Access to Public Records Act, R.I. Gen. Laws § 38-2-1 et seq., I am requesting access to records, which I believe are public documents. Specifically, I am requesting records relating to (be as specific as possible about your request). In accordance with R.I. Gen. Laws § 38-2-7, (name of public body) has ten (10) business days to provide the requested documents or to notify me in writing the specific reasons for denying me access to the requested records. If the exemption you are claiming applies only to a portion of the records that I seek, please delete that portion and provide photocopies of the remainder of the records. See R.I. Gen. Laws § 38-2-2(4)(ii). I understand that for “good cause” the ten (10) business day time period may be extended for an additional twenty (20) business days, provided that I am notified of the “good cause” in writing within the original ten (10) business days of my request. I also agree to pay a maximum of $.15 per page for the cost of photocopying and a maximum of $15.00 per hour for search and retrieval, with the first hour being free. It is also my understanding that (name of public body) must provide me an estimate of the costs, prior to providing copies. Please notify me at the following phone number or address when the requested records are available for pickup. Thank you for your assistance in this matter. Sincerely, Name, address, and telephone number (optional)

6–23

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

6–24

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

EXHIBIT 6B—Sample Denial Letter Dear (name of requestor): Thank you for your letter requesting access to (specify documents requested). Pursuant to the Access to Public Records Act, the records you have requested (or a portion of the records you have requested) do not constitute public records. Specifically, (specify documents requested) are exempt from public disclosure pursuant to (cite appropriate section of R.I. Gen. Laws § 38-2-2(4)(i)(A)– (W)). In accordance with R.I. Gen. Laws § 38-2-8, you may wish to appeal this decision to (name and address of the chief administrative officer of the public body). You may also wish to file a complaint with the Department of the Attorney General, 150 South Main Street, Providence, Rhode Island, 02903, or the Rhode Island Superior Court of the county where the record(s) are maintained. It is also my understanding that additional information concerning the Access to Public Records Act may be available through the Attorney General’s website at www.riag.state.ri.us. Thank you for your interest in keeping government open and accountable to the public. Sincerely, Name

6–25

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

6–26

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

EXHIBIT 6C—State Agencies Contact Information Adjutant General, Office of the 645 New London Avenue Cranston, RI 02920 Phone: 401-275-4100 Fax: 401-275-4338

Attorney General, Office of the 150 South Main Street Providence, RI 02903 Phone: 401-274-4400 Web Site: www.riag.ri.gov

Department of Administration One Capitol Hill Providence, RI 02908 Phone: 401-222-2000 Fax: 401-222-6436 Web Site: www.doa.state.ri.us

Auditor General, Office of 86 Weybosset Street, 2nd Floor Providence, RI 02903 Phone: 401-222-2435 Fax: 401-222-2111 Web Site: www.oag.ri.gov

Airport Corporation—Rhode Island T.F. Green Airport 2000 Post Road Warwick, RI 02886 Phone: 401-691-2000 Fax: 401-691-2575 Web Site: www.pvdairport.com

Building Code Commission, State One Capitol Hill Providence, RI 02908 Phone: 401-222-3033 Fax: 401-222-2599 E-mail: [email protected]

Architects, Board of Examination and Registration RI Department of Business Regulation/Division of Design Professionals 1511 Pontiac Avenue, Bldg. 68-2 Cranston, RI 02920 Phone: 401-462-9594 Fax: 401-462-9532 Web Site: www.bdp.ri.gov Arts, Rhode Island State Council on the One Capitol Hill 3rd Floor Providence, RI 02908 Phone: 401-222-3880 Fax: 401-222-3018 Web Site: www.arts.ri.gov

Building Code Standards Committee, State One Capitol Hill Providence, RI 02908 Phone: 401-222-3529 Fax: 401-222-2599 E-mail: [email protected] Business Regulation, Department of 1511 Pontiac Avenue, Bldg. 68-2 Cranston, RI 02920 Phone: 401-462-9500 Fax: 401-462-9532 Web Site: www.dbr.state.ri.us

6–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Capital Center Commission c/o City of Providence, Department of Planning 400 Westminster Street Providence, RI 02903 Phone: 401-351-4300, Ext. 524 Fax: 401-454-0731 E-mail: [email protected]

Convention Center Authority, Rhode Island One LaSalle Square Dunkin Donut Center Providence, RI 02903 Phone: 401-351-4295 Fax: 401-421-8510 Web Site: www.riccauth.com

Child Advocate, Office of the John O. Pastore Center 57 Howard Avenue, 4th Floor Cranston, RI 02920 Phone: 401-462-4300 Fax: 401-462-4305 Web Site: www.child-advocate.ri.gov

Corrections, Department of 40 Howard Avenue Cranston, RI 02920 Phone: 401-462-2611 Fax: 401-462-2630 Web Site: www.doc.ri.gov

Children, Youth and Families, Department of 101 Friendship Street Providence, RI 02903 Phone: 401-528-3540 Fax: 401-528-3580 Web Site: www.dcyf.ri.gov Coastal Resources Management Council OHS Government Center 4808 Tower Hill Road Wakefield, RI 02879 Phone: 401-783-3370 Fax: 401-783-3767 Web Site: www.crmc.ri.gov Contractor’s Registration and Licensing Board One Capitol Hill Providence, RI 02908 Phone: 401-222-1268 Fax: 401-222-1940 Web Site: www.crb.state.ri.us

6–28

Deaf and Hard of Hearing, Commission on One Capitol Hill, Ground Level Providence, RI 02908 Phone: 401-222-1204 Fax: 401-222-5736 Web Site: www.cdhh.ri.gov Developmental Disabilities Council, Rhode Island 400 Bald Hill Road, Suite 515 Warwick, RI 02886 Phone: 401-737-1238 Fax: 401-737-3395 Web Site: www.riddc.org Disabilities, Governor’s Commission on John O. Pastore Center 41 Cherry Dale Court Cranston, RI 02920 Phone: 401-462-0100 Fax: 401-462-0106 Web Site: www.disabilities.ri.gov

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

E911 Uniform Emergency Telephone System 1951 Smith Street North Providence, RI 02911 Phone: 401-354-0911 Fax: 401-354-0933 Web Site: www.ri911.state.ri.us E911 Uniform Emergency Telephone System Advisory Commission 1951 Smith Street North Providence, RI 02911 Phone: 401-354-0911 Fax: 401-354-0933 Web Site: www.ri911.state.ri.us Economic Development Corporation, Rhode Island 315 Iron Horse Way, Suite 101 Providence, RI 02908 Phone: 401-278-9100 Fax: 401-273-8270 Web Site: www.riedc.com Economic Policy Council, Rhode Island 315 Iron Horse Way, Suite 101 Providence, RI 02908 Phone: 401-278-9100 Fax: 401-273-8270 Web Site: www.riedc.com Education Assistance Authority, Higher 560 Jefferson Boulevard Warwick, RI 02886 Phone: 401-736-1100 Fax: 401-732-3541 Web Site: www.riheaa.org

Education, Department of 255 Westminster Street Providence, RI 02903 Phone: 401-222-8435 Fax: 401-222-6178 Web Site: www.ridoe.net Education, Rhode Island Board of Governors for Higher The Hazard Building 74 West Road Cranston, RI 02920 Phone: 401-462-9300 Fax: 401-462-9345 Web Site: www.ribghe.org Elderly Affairs, Department of John O. Pastore Center Hazard Building 74 West Road Cranston, RI 02920 Phone: 401-462-3000 Fax: 401-462-0503 Web Site: www.dea.state.ri.us Elections, Board of 50 Branch Avenue Providence, RI 02904 Phone: 401-222-2345 Fax: 401-222-3135 Web Site: www.elections.ri.gov Electricians, Board of Examiners of Department of Labor and Training 1511 Pontiac Avenue Cranston, RI 02920 Phone: 401-462-8580 Fax: 401-462-8528 Web Site: www.dlt.state.ri.us

6–29

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Elementary and Secondary Education, Board of Regents for 255 Westminster Street Providence, RI 02903 Phone: 401-222-4600, Ext. 2003 Fax: 401-222-6178 Web Site: www.ride.ri.gov Emergency Management Advisory Council, Rhode Island State House, Room 116 82 Smith Street Providence, RI 02903 Phone: 401-222-2371 Fax: 401-222-2012 E-mail: [email protected] Emergency Management Agency, Rhode Island 645 New London Avenue Cranston, RI 02920 Phone: 401-946-9996 Fax: 401-944-1891 Web Site: www.riema.ri.gov Engineers, Board of Registration for Professional RI Department of Business Regulation/Division of Design Professionals 1511 Pontiac Avenue, Bldg. 68-2 Cranston, RI 02920 Phone: 401-462-9592 Fax: 401-462-9532 Web Site: www.bdp.state.ri.us Environmental Management, Department of 235 Promenade Street Providence, RI 02908 Phone: 401-222-2771 Fax: 401-222-6802 Web Site: http://www.dem.ri.gov

6–30

Ethics Commission, Rhode Island 40 Fountain Street Providence, RI 02903 Phone: 401-222-3790 Fax: 401-222-3382 Web Site: www.ethics.ri.gov Executive High Sheriff, Office of the 670 New London Avenue Cranston, RI 02920 Phone: 401-275-2900 Fax: 401-275-2358 E-mail: [email protected] Fire Safety Code Board of Appeal and Review One Regan Court Varley Building #46 Cranston, RI 02920 Phone: 401-462-0940 Fax: 401-462-0941 Web Site: [email protected] General Treasurer, Office of the State House, Room 102 82 Smith Street Providence, RI 02903 Phone: 401-222-2397 Fax: 401-222-6140 Web Site: www.treasury.ri.gov Governor, Office of the State House, Room 222 82 Smith Street Providence, RI 02903 Phone: 401-222-2080 Fax: 401-222-8096 Web Site: www.governor.ri.gov

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

Health and Education Building Corporation, Rhode Island 170 Westminster Street, Suite 1200 Providence, RI 02903 Phone: 401-831-3770 Fax: 401-421-3910 Web Site: www.rihebc.com

Housing and Mortgage Finance Corporation, Rhode Island 44 Washington Street Providence, RI 02903 Phone: 401-457-1234 Fax: 401-457-1136 Web Site: www.rhodeislandhousing.org

Health Insurance Commissioner, Office of the 1511 Pontiac Avenue, Bldg. 69-1 Cranston, RI 02920 Phone: 401-462-9517 Fax: 401-462-9645 Web Site: www.ohic.ri.gov

Human Rights, Commission for 180 Westminster Street, Third Floor Providence, RI 02903 Phone: 401-222-2662 Fax: 401-222-2616 Web Site: www.richr.ri.gov

Health, Department of Three Capitol Hill Providence, RI 02908 Phone: 401-222-5960 Fax: 401-222-6548 Web Site: www.health.ri.gov

Human Services, Department of 600 New London Avenue, Bldg. #38 Cranston, RI 02920 Phone: 401-462-2121 Fax: 401-462-3677 Web Site: www.dhs.ri.gov

Historical Preservation and Heritage Commission, Rhode Island 150 Benefit Street Providence, RI 02903 Phone: 401-222-2678 Fax: 401-222-2968 Web Site: www.preservation.ri.gov

Industrial Recreational Building Authority 315 Iron Horse Way, Suite 101 Providence, RI 02908 Phone: 401-278-9100 Fax: 401-273-8270 Web Site: www.riedc.com

Hoisting Engineers, Board of Examiners of Department of Labor and Training 1511 Pontiac Avenue Cranston, RI 02920 Phone: 401-462-8580 Fax: 401-462-8528 Web Site: www.dlt.state.ri.us

Information Technology, Division of One Capitol Hill, 4th Floor Providence, RI 02908 Phone: 401-222-4444 Fax: 401-222-4260 Web Site: www.doit.ri.gov

6–31

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Investment Commission, Rhode Island State Office of the General Treasurer State House, Room 102 Providence, RI 02903 Phone: 401-222-2397 Fax: 401-222-6140 Web Site: www.treasury.ri.gov/commissions

Landscape Architects, Board of Examiners of RI Department of Business Regulation/Division of Design Professionals 1511 Pontiac Avenue. Bldg. 68-2 Cranston, RI 02920 Phone: 401-462-9595 Fax: 401-462-9532 E-mail: [email protected]

Judicial Nominating Commission Department of Administration One Capitol Hill, 3rd Floor, Conference Room #2 Providence, RI 02908 Phone: 401-274-2000 Fax: 401-277-9600 E-mail: scarlotti@haslawcom

Lieutenant Governor, Office of the State House, Room 116 82 Smith Street Providence, RI 02903 Phone: 401-222-2371 Fax: 401-222-2012 Web Site: www.ltgov.ri.gov

Labor and Training, Department of 1511 Pontiac Avenue Cranston, RI 02920 Phone: 401-462-8000 Fax: 401-462-8872 Web Site: www.dlt.ri.gov Labor Relations Board, Rhode Island State 1511 Pontiac Avenue, Bldg. #73, 2nd Floor Cranston, RI 02920 Phone: 401-462-8330 Fax: 401-462-8776 Web Site: www.dlt.state.ri.us/lrb Land Surveyors, Board of Registration for Professional RI Department of Business Regulation 1511 Pontiac Avenue, Bldg. 68-2 Cranston, RI 02920 Phone: 401-462-9595 Fax: 401-462-9532 Web Site: www.bdp.state.ri.us 6–32

Long Term Care Coordinating Council State House, Room 144 82 Smith Street Providence, RI 02903 Phone: 401-222-2371 Fax: 401-222-2012 Web Site: www.ltgov.ri.gov Lotteries, Division of Department of Revenue 1425 Pontiac Avenue Cranston, RI 02920 Phone: 401-463-6500 Fax: 401-463-5669 Web Site: www.rilot.com Marine Fisheries Council 3 Fort Wetherill Road Jamestown, RI 02835 Phone: 401-423-1920 Fax: 401-423-1925 E-mail: [email protected]

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

Medical Examiners’ Commission 48 Orms Street Providence, RI 02904 Phone: 401-222-5500 Fax: 401-222-5517 El-mail: [email protected] Mental Health Advocate, Office of the John O. Pastore Center 57 Howard Avenue, 4th Floor Cranston, RI 02920 Phone: 401-462-2003; 800-346-2282 Fax: 401-462-2008 E-mail: [email protected] Mental Health, Retardation and Hospitals, Department of 14 Harrington Road Cranston, RI 02920 Phone: 401-462-3201 Fax: 401-462-3204 Web Site: www.mhrh.state.ri.us Minority Business Enterprise Compliance Office One Capitol Hill, 2nd Floor Providence, RI 02908 Phone: 401-574-8670 Fax: 401-574-8387 No Web Site; No E-mail Motor Vehicle Dealers License and Hearing Board Division of Motor Vehicles 100 Main Street Pawtucket, RI 02860 Phone: 401-462-5731 Fax: None Web Site: www.dmv.state.ri.us

Motor Vehicles Medical Advisory Board, Division of Motor Vehicles –Operator Control John O. Pastore Complex Harrington Hall, 30 Howard Avenue, Bldg. 58 Cranston, RI 02920 Phone: 401-462-0803 Fax: None No Web Site; No E-mail Motor Vehicles, Division of 100 Main Street Pawtucket, RI 02860 Phone: 401-462-4368 Fax: None Web Site: www.dmv.state.ri.us Narragansett Bay Commission One Service Road Providence, RI 02905 Phone: 401-461-8848 Fax: 401-461-6540 Web Site: www.narrabay.com Occupational Safety and Health Review Board Department of Labor and Training 1511 Pontiac Avenue Cranston, RI 02920 Phone: 401-462-8570 Fax: 401-462-8576 Web Site: www.dlt.state.ri.us Occupational Safety and Health, Code Commission for Department of Labor and Training 1511 Pontiac Avenue Cranston, RI 02920 Phone: 401-462-8570 Fax: 401-462-8576 Web Site: www.dlt.state.ri.us

6–33

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Parole Board Varley Building 40 Howard Avenue Cranston, RI 02920 Phone: 401-462-0900 Fax: 401-462-0915 Web Site: www.paroleboard.ri.gov

Public Safety, Department of RI State Police 311 Danielson Pike North Scituate, RI 02857 Phone: 401-464-1010 Fax: 401-444-1105 Web Site: www.risp.ri.gov

Planning Council, State Department of Administration One Capitol Hill Providence, RI 02908 Phone: 401-222-5765 Fax: 401-222-2083 Web Site: www.planning.ri.gov

Public Utilities Commission 89 Jefferson Boulevard Warwick, RI 02888 Phone: 401-941-4500 Fax: 401-941-1691 Web Site: www.ripuc.org

Plumbers, Board of Examiners of Department of Labor & Training, Professional Regulation 1511 Pontiac Avenue, Bldg. 70-2 Cranston, RI 02920 Phone: 401-462-8538 Fax: 401-462-8528 Web Site: www.dlt.state.ri.us Properties Committee, State Department of Administration One Capitol Hill, 2nd Floor Providence, RI 02908 Phone: 401-222-1280 Fax: 401-222-2599 Web Site: www.statepropertiescommittee.ri.gov Public Defender, Office of the 160 Pine Street Providence, RI 02903 Phone: 401-222-3492 Fax: 401-222-3287 Web Site: www.ripd.org

6–34

Refunding Bond Authority, Rhode Island State House, Room 102 82 Smith Street Providence, RI 02903 Phone: 401-222-2397 Fax: 401-222-6140 Web Site: www.treasury.ri.gov Resource Recovery Corporation, Rhode Island 65 Shun Pike Johnston, RI 02919 Phone: 401-942-1430, Ext. 262 Fax: 401-942-3280 Web Site: www.rirrc.org Revenue, Department of One Capitol Hill Providence, RI 02908 Phone: 401-574-8999 Fax: 401-574-8997 No Web Site, No E-mail

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

Secretary of State, Office of the State House, Room 217 82 Smith Street Providence, RI 02903 Phone: 401-222-2357 Fax: 401-222-1356 Web Site: www.sec.state.ri.us

Taxation, Division of Department of Revenue One Capitol Hill Providence, RI 02908 Phone: 401-574-8922 Fax: 401-574-8917 Web Site: www.tax.ri.gov/

Small Business Advocacy Council State House, Room 116 82 Smith Street Providence, RI 02903 Phone: 401-222-2371 Fax: 401-222-2012 Web Site: www.ltgov.ri.gov

Telecommunications Authority, Public 50 Park Lane Providence, RI 02907 Phone: 401-222-3636 Fax: 401-222-3407 Web Site: www.ripbs.org

State Fire Marshall, Rhode Island 118 Parade Street Providence, RI 02909 Phone: 401-462-4200 Fax: 401-462-4250 Web Site: www.fire-marshall.ri.gov

Transit Authority, Rhode Island Public 265 Melrose Street Providence, RI 02907 Phone: 401-784-9500, Ext. 170/171 Fax: 401-784-9513 Web Site: www.ripta.com

State Police, Rhode Island Superintendent/Commissioner, RI Department of Public Safety 311 Danielson Pike North Scituate, RI 02857 Phone: 401-444-1000 Fax: 401-444-1105 Web Site: www.risp.ri.gov

Transportation, Department of Two Capitol Hill Providence, RI 02903 Phone: 401-222-2481 Fax: 401-222-2086 Web Site: www.dot.ri.gov

Student Loan Authority Board of Directors, Rhode Island 560 Jefferson Boulevard Warwick, RI 02886 Phone: 800-758-7562 Fax: 401-468-1745 Web Site: www.risla.com

Turnpike and Bridge Authority, Rhode Island 1 East Shore Road P.O. Box 437 Jamestown, RI 02835 Phone: 401-423-0800 Fax: 401-423-0830

6–35

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Water Finance Agency, Rhode Island Clean 235 Promenade Street, Suite 119 Providence, RI 02908 Phone: 401-453-4430 Fax: 401-453-4094 Web Site: www.ricwfa.com Water Resources Board, Rhode Island Foundry Building 235 Promenade Street, Suite 438 Providence, RI 02908 Phone: 401-222-1450 Fax: 401-222-1454 Web Site: www.wrb.ri.gov

6–36

Women, Rhode Island Commission on Department of Administration One Capitol Hill, 2nd Floor Providence, RI 02908 Phone: 401-222-6105 Fax: 401-222-5638 Web Site: www.ricw.ri.gov

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

EXHIBIT 6D—State Government Contact Information Barrington Town Hall 283 County Road Barrington, RI 02806 (Tel:) 401-247-1900 (Fax) 401-247-3765 www.barrington.ri.gov

Coventry Town Hall 1670 Flat River Road Coventry, RI 02816 (Tel:) 401-821-6400 (Fax) 401-822-9132 www.town.coventry.ri.us

Bristol Town Hall 10 Court Street Bristol, RI 02809 (Tel:) 401-253-7000 (Fax) 401-253-2647 www.bristolri.us

Cranston City Hall 869 Park Ave Cranston, RI 02910 (Tel:) 401-461-1000 (Fax) 401-780-3170 www.cranstonri.com

Burrillville Town Hall 105 Harrisville Main Street Harrisville, RI 02830 (Tel:) 401-568-4300 (Fax) 401-568-0490 www.burrillville.org

Cumberland Town Hall 45 Broad Street Cumberland, RI 02864 (Tel:) 401-728-2400 (Fax) 401-727-3335 www.cumberlandri.org

Central Falls City Hall 580 Broad Street Central Falls, RI 02863 (Tel:) 401-727-7400 (Fax:) 401-727-7406 www.centralfallsri.us

East Greenwich Town Hall 125 Main Street PO Box 111 East Greenwich, RI 02818 (Tel:) 401-886-8665 (Fax) 401-886-8623 www.eastgreenwichri.com

Charlestown Town Hall 4540 South County Trail Charlestown, RI 02813 (Tel:) 401-364-1200 (Fax) 401-364-1238 www.charlestownri.org

East Providence City Hall 145 Taunton Avenue East Providence, RI 02914 (Tel:) 401-435-7500 www.eastprovidenceri.net

6–37

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Exeter Town Hall 675 Ten Rod Road Exeter, RI 02822 (Tel:) 401-294-3891 Fax: 401-295-1248 www.town.exeter.ri.us

Johnston Town Hall 1385 Hartford Avenue Johnston, R.I. 02919 (Tel:) 401-351-6618 Fax: 401-553-8835 www.johnston-ri.us

Foster Town Hall 181 Howard Hill Road Foster, R.I. 02825 (Tel:) 401-392-9200 Fax: 401-702-5010 www.townoffoster.com

Lincoln Town Hall 100 Old River Road P.O. Box 100 Lincoln, R.I. 02865 (Tel:) 401-333-1100 Fax: 401-333-3648 www.lincolnri.org

Glocester Town Hall 1145 Putnam Pike P.O. Drawer B Chepachet, R.I. 02814 (Tel:) 401-568-6206 Fax: 401-568-5850 www.glocesterri.org Hopkinton Town Hall One Town House Road Hopkinton, R.I. 02833 (Tel:) 401-377-7777 Fax: 401-377-7788 Jamestown Town Hall 93 Narragansett Avenue Jamestown, R.I. 02835 (Tel:) 401-423-7200 Fax: 401-423-7229 www.jamestownri.net

6–38

Little Compton Town Hall P.O. Box 226 40 Commons Little Compton, R.I. 02837 (Tel:) 401-635-4400 Fax: 401-635-2470 Middletown Town Hall 350 East Main Road Middletown, R.I. 02842 (Tel:) 401-847-0009 Fax: 401-845-0406 www.middletownri.com Narragansett Indian Tribe P.O. Box 268 4375B South County Trail Charlestown, R.I. 02813 (Tel:) 401-364-1100 Fax: 401-364-1104 www.narragansett-tribe.org

OBTAINING INFORMATION FROM GOVERNMENT SOURCES

Narragansett Town Hall 25 Fifth Avenue Narragansett, R.I. 02882 (Tel:) 401-789-1044 Fax: 401-7893-9637 www.narragansettri.gov New Shoreham Town Hall P.O. Box 220 Old Town Road Block Island, R.I. 02807 (Tel:) 401-466-3200 Fax: 401-466-3219 www.new-shoreham.com Newport City Hall 43 Broadway Newport, R.I. 02840 (Tel:) 401-846-9600 Fax: 401-848-5750 www.ci.newport.ri.us North Kingstown Town Hall 80 Boston Neck Road North Kingstown, R.I. 02852 (Tel:) 401-294-3331 Fax: 401-885-7373 www.northkingstown.org North Providence Town Hall 2000 Smith Street North Providence, R.I. 02911 (Tel:) 401-232-0900 Fax: 401-231-9855 www.northprovidenceri.gov

North Smithfield Town Hall 1 Main Street P.O. Box 248 Slatersville, R.I. 02876 (Tel:) 401-767-2200 ext 301 Fax: 401-766-0016 www.nsmithfieldri.org Pawtucket City Hall 137 Roosevelt Avenue Pawtucket, R.I. 02860 (Tel:) 401-728-0500 Fax: 401-728-8932 www.pawtucketri.com Portsmouth Town Hall 220 East Main Road Portsmouth, R.I. 02871 (Tel:) 401-683-3255 Fax: 401-683-6804 www.portsmouthri.com Providence City Hall 25 Dorrance Street Providence, R.I. 02903 (Tel:) 401-421-7740 Fax: 401-274-8240 www.providenceri.com Richmond Town Hall 5 Richmond Townhouse Road Wyoming, R.I. 02898 (Tel:) 401-539-9000 Fax: 401-539-1089 www.richmondri.com

6–39

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Scituate Town Hall 195 Danielson Pike North Scituate, R.I. 02857 (Tel:) 401-647-2822 Fax: 401-647-7220 www.scitiuateri.org

Warwick City Hall 6275 Post Road Warwick, R.I. 02886 (Tel:) 401-738-2000 Fax: 401-738-6639 www.warwickri.gov

Smithfield Town Hall 64 Farnum Pike Smithfield, R.I. 02917 (Tel:) 401-233-1000 Fax: 401-233-1080 www.smithfieldri.com

West Greenwich Town Hall 280 Victory Highway West Greenwich, R.I. 02817 (Tel:) 401-392-3800 Fax: 401-392-3805 www.wgtownri.org

South Kingstown Town Hall 180 High Street Wakefield, R.I. 02879 (Tel:) 401-789-9331 Fax: 401-788-9792 www.southkingstownri.com

West Warwick Town Hall 1170 Main Street West Warwick, R.I. 02893 (Tel:) 401-822-9200 Fax: 401-822-9266 www.westwarwickri.org

Tiverton Town Hall 343 Highland Road Tiverton, R.I. 02878 (Tel:) 401-625-6703 Fax: 401-625-6705 www.tiverton.ri.gov

Westerly Town Hall 45 Broad Street Westerly, R.I. 02891 (Tel:) 401-348-2634 Fax: 401-348-2571 www.townofwesterly.com

Warren Town Hall 514 Main Street Warren, R.I. 02885 (Tel:) 401-245-7340 Fax: 401-245-7421 www.townofwarren-ri.gov

Woonsocket City Hall 169 Main Street Woonsocket, R.I. 02895 (Tel:) 401-762-6400 Fax: 401-765-0022 www.ci.woonsocket.ri.us

6–40

CHAPTER 7

Using the Internet in Discovery and Investigation Michael Patrick Quinn, Jr. § 7.1

Introduction .......................................................................... 7–1

§ 7.2

Computers and Computer Networks................................... 7–2

§ 7.3

§ 7.2.1

Early History ......................................................... 7–2

§ 7.2.2

The Internet Today ................................................ 7–3

§ 7.2.3

Use by Lawyers..................................................... 7–4

Search Engines ..................................................................... 7–5 § 7.3.1

§ 7.4

Overview ............................................................... 7–5

Specialized Web Sites ........................................................... 7–5 § 7.4.1

§ 7.4.2

Medical Information Web Sites............................. 7–6 (a)

National Center for Biotechnology Information (NCBI) ..................................... 7–6

(b)

MD Consult.................................................. 7–7

(c)

National Guideline Clearinghouse ............... 7–8

(d)

IDEX ............................................................ 7–8

(e)

SEAK ........................................................... 7–9

(f)

Wikipedia ..................................................... 7–9

(g)

Google (“The Catch All”) .......................... 7–10

(h)

Using Medical Information on the Internet During Discovery...........................7–11

Web Sites with Personal Information.................. 7–12

7–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 7.4.3

§ 7.4.4

§ 7.4.5

Corporate/Business Information on the Internet ......................................................7–14 (a)

SEC Web Site—“EDGAR” ........................7–14

(b)

Business Web Sites .....................................7–15

(c)

News Web Sites ..........................................7–16

Government Web Sites.........................................7–17 (a)

Rhode Island Secretary of State Web Site......................................................7–17

(b)

Rhode Island Judiciary................................7–17

(c)

Land Records ..............................................7–18

(d)

Rhode Island General Assembly.................7–18

(e)

Internal Revenue Service ............................7–18

(f)

Weather Information ...................................7–18

(g)

Product Safety and Consumer Information .................................................7–18

Legal and Legal Education Web Sites..................7–19 (a)

PACER ........................................................7–19

(b)

Cornell University’s Legal Information Institute ...................................7–19

(c)

Law.com......................................................7–20

§ 7.4.6

Finding Extinct Web Sites....................................7–20

§ 7.4.7

Miscellaneous Web Sites and Information...........7–21 (a)

Refdesk.com ...............................................7–21

§ 7.5

Blogs, Bulletin Boards, Newsgroups, Etc. .........................7–21

§ 7.6

Admissibility of Web Pages, Web Postings, and Other Internet Evidence ................................................................7–22

EXHIBIT 7A—List of Search Engines............................................7–27

7–ii

CHAPTER 7

Using the Internet in Discovery and Investigation Michael Patrick Quinn, Jr.

Scope Note This chapter discusses ways to use the Internet to support discovery and investigation in civil litigation. It begins with a brief, general overview of the development of the Internet and its “search engines.” The chapter also reviews a number of specific areas where the Internet can be helpful to a lawyer during the discovery process, including tips on finding medical and corporate information. The chapter concludes with a discussion of materials obtained from the Internet and issues relating to their admissibility.

§ 7.1

INTRODUCTION

The Internet is the world’s largest and most comprehensive collection of information and documents. Unlike books in libraries or documents in government archives, the information and documents available on the Internet do not exist at traditional geographical locations. While they do reside on servers located all over the world, the information and documents are in “cyberspace,” accessible from any personal computer connected to the Internet. The Internet is already an important tool for attorneys who use sites like Westlaw.com and LexisNexis.com (to name two of the most popular) to perform legal research. As Internet use has exploded in recent years, so has the evidentiary use of information mined from Web sites and social media sites. During the discovery process, the Internet can also be an additional source of information on fact witnesses and experts, medical literature, corporations, etc.

7–1

§ 7.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 7.2

COMPUTERS AND COMPUTER NETWORKS

§ 7.2.1

Early History

Until the development and marketing of the personal computer in the late 1970s, computers were large “mainframes” used by scientists, corporations, and the military. Computers were used almost exclusively for number crunching and mathematical modeling. Even telecommunications were managed by mechanical switches rather than digital processors. Up until this time, individuals and small firms or companies had little access to, or applications for, computers. After the introduction of the personal computer by IBM and the development and marketing of applications such as word processors and spreadsheets, individuals and small businesses could use computers to create documents, perform financial analyses, and eventually group small computers into more powerful local area networks (LANs). In the 1980s, the nascent digital telecommunications industry developed and marketed devices called modems that allowed computers to dial each other and communicate over telephone lines. Although voice telephone lines have limited capacity to carry data, computers were so slow that voice telephone lines were adequate for computer-to-computer communication. Nevertheless, modems and computer-to-computer connections were not very useful unless a user knew which computer to dial and communicate with. Eventually, proprietary computer databases such as Compuserve appeared in the marketplace. These proprietary databases existed on one or more privately owned servers. For a fee, consumers could use their personal computers and modems to connect via telephone lines to these databases and download information. These databases contained mostly information about consumer goods such as automobiles and electronics. Eventually, other companies such as Prodigy and AOL entered the market offering similar services. Specialized services such as Westlaw and Lexis made their case law databases available over telephone lines to the legal marketplace. All of these services were similar in that, for a fee, consumers could use their personal computers to dial into a server that held information stored in a logical way. Consumers could search the server’s database index and download information into their personal computers or view the information on a monitor. However, because each service had its own phone number, a consumer could access information only on the single proprietary server contacted using his or her modem, connected to a telephone line attached to the wall. Obviously, this model was of limited usefulness. Consumers clearly needed a better way to access information. Eventually, companies set up their own database 7–2

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.2

servers, called “bulletin boards,” and allowed consumers to dial in directly to these servers to access information. However, bulletin boards were limited in the number of simultaneous calls they could receive and the amount of data that could be transmitted over telephone lines. Text data, being very digitally compact, could be transmitted over telephone lines fairly quickly, but images, which require a great deal of digital data to represent various colors and contrasts, could be transmitted only very slowly over phone lines. In addition, consumers had to know the telephone numbers for each bulletin board. The obvious solution to these problems was to interconnect database servers and consumers through a network that resembled a “web.” Once a consumer was part of the web, he or she could access all of its databases. However, this model required an infrastructure of digital connections that spanned large geographic areas. Because the U.S. government, academicians, and the military had already set up such an “internet,” this internet became the logical infrastructure to connect the thousands of database servers and consumers. The Internet, or World Wide Web, began to develop into its current form when telecommunications evolved enough to allow high-speed digital connections and software developers provided software (Web browsers) that allowed consumers to easily view and download information from any of the Web’s servers.

§ 7.2.2

The Internet Today

Since its early days, use of the Internet has exploded. Today, the Internet consists of millions of Web sites that contain information. In short, Web sites are files on a server that contain textual and graphical information or links to other information on different servers, or provide front ends to databases contained on the server. Users can connect to the Internet through Internet service providers (ISPs) that provide Internet access through dial-up modems, high-speed telephone lines (such as DSL), cable, and leased high-speed lines (such as T1 and T3 lines). Most small businesses access the Internet through DSL lines, although cable access is rapidly entering the business market. When a consumer connects his or her computer to the Internet and becomes a user, his or her computer becomes part of the World Wide Web. Every computer connected to the Internet has a unique address called an Internet protocol (IP) address that consists of up to twelve digits in the form nnn.nnn.nnn.nnn—for example, 208.777.188.166. If a user wants to visit a Web site, he or she need not know its server’s numerical IP address, because dynamic name servers (DNS) on the Internet translate textual Web site addresses, or URLs (uniform resource locators), such as http://www.mcle.org, into numerical 7–3

§ 7.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

IP addresses. This process is invisible to the user. Therefore, in order to access a Web site, a user simply enters the site’s URL into his or her Web browser. URLs consist of four parts: • a protocol name (a protocol consists of the rules and standards that enable computers to exchange information), • the location of the Web site, • the name of the organization or entity that owns the site, and • a suffix that identifies the type of organization or entity that owns the site. For example, when a user enters the URL http://www.acme.com, he or she is entering the following information: • “http:” signifies that the server uses hypertext transfer protocol (another type of protocol, “https:”, signifies that the server uses hypertext transfer protocol secure, a protocol used by many Web sites that provide transactions by credit card); • “www” signifies that the server is located on the World Wide Web; • “acme” signifies that the server is owned by the Acme entity; and • “com” signifies that Acme is a commercial entity. (Other suffixes include “org” for public service organizations, “gov” for U.S. government agencies, “mil” for the U.S. military, and “edu” for academic institutions. If the Web site is based in another country, the URL may end in a suffix for that country, such as “uk” for England and “ru” for Russia.) Web browsers like Microsoft’s Internet Explorer allow a user to enter a URL to display a requested Web page for viewing. Internet Explorer is the most widely used browser.

§ 7.2.3

Use by Lawyers

How does a lawyer looking for information to help in the discovery process know which server contains the information he or she is looking for? Some sites are well known, such as Amazon.com, or intuitive, like Westlaw.com, but the many other sites that sell books or contain legal information, or, as will be discussed 7–4

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.2

below, contain specific information relevant to a particular litigation, may be more difficult to locate. Because there are millions of Web pages, lawyers need a way to find the information they need. Web site directories, similar to phone directories, were available in the early 1990s. However, these directories soon became obsolete, which brings us to the search engine.

§ 7.3

SEARCH ENGINES

§ 7.3.1

Overview

Search engines are actually Web sites that allow users to quickly search the millions of Web pages on the Internet for whatever information they might be looking for. (A detailed description of the technology they use is beyond the scope of this chapter.) Google is probably familiar to most lawyers. More recently, Microsoft has entered the search engine market with Bing. Search engines have evolved rapidly over the past decade. They have become more efficient. Indeed, new Web pages are almost immediately available and accessible. For lawyers who have to spend time and money on formal discovery, it is a welcome fact that the most familiar search engines are free to all. This is because vendors pay to advertise on the search engine’s Web site (and to influence the results of queries). Throughout the rest of this chapter, as specialized Web sites are detailed, keep in mind that the Internet is dynamic and the information on it grows stale quickly. A Web site helpful for finding experts in a products liability case today might be defunct next month.

§ 7.4

SPECIALIZED WEB SITES

Search engines like Google direct the user to Web pages relevant to his or her query, but some specialized Web sites are themselves databases of information and have their own built-in search engines that search only that site’s databases and contents. Keep in mind that these pages often use the Boolean operators “AND,” “OR,” and “NOT” to allow a user to refine searches and limit search results to the most relevant information. For instance, if you are using Wikipedia and want to obtain general information on adenocarcinoma, you can use Wikipedia’s internal search engine and type in “adenocarcinoma.”

7–5

§ 7.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 7.4.1 (a)

Medical Information Web Sites National Center for Biotechnology Information (NCBI)

MEDLINE is a database of the National Library of Medicine that contains citations and abstracts of articles from almost 5,000 medical journals from the United States and approximately seventy other countries. The citations cover research in and studies of medicine, nursing, dentistry, veterinary medicine, the health-care system, and basic science. In addition, most of these medical journals are peer reviewed. Practice Note Peer review is particularly important when litigation depends on the admissibility of expert testimony under the line of cases following Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), such as Owens v. Silvia, 838 A.2d 881 (2003).

The MEDLINE database contains over 12 million citations dating back to the mid-1960s. A companion database, OLDMEDLINE, contains citations dating to the 1950s. Most of the citations and abstracts are in English or include English abstracts. Although the text of the entire article is not available, most of the abstracts are fairly comprehensive. The MEDLINE databases are accessed through PubMed, without charge to Internet users, via the NCBI Entrez retrieval system. Entrez is a text-based search and retrieval system available at http://www.ncbi.nlm.nih.gov. By entering search terms connected by Boolean operators and “limits” for such categories as time frame, type of study, and language, a user can find a medical journal article on any medical subject and by any author. The NCBI Web site contains links to TOXNET, a cluster of databases on toxicology and hazardous chemicals, including cancer-causing chemicals and substances. These databases include the Hazardous Substances Data Bank, Developmental and Reproductive Toxicology, and ChemIDplus, a database of chemical synonyms and structures. The NCBI Web site also contains a resource called the Bookshelf, which is “a growing collection of biomedical books that can be searched,” much like the MEDLINE databases. The Bookshelf contains many basic science books that may be of little use to attorneys, but it also contains the comprehensive textbook Cancer Medicine, published by the American Cancer Society, and a textbook of surgery. These texts contain useful information concerning the diagnosis, treatment, and prognosis for various types of cancer and surgical conditions. 7–6

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.4

The NCBI Web site also offers a service called “Loansome Doc” that will, for a fee, locate and deliver the full text of almost any medical article. The service may be accessed by submitting a request to a local medical library. Personnel at the medical library photocopy the article and mail it to the user. Because this process is labor intensive, the documents are also expensive and may take several days to arrive. Citations in PubMed often contain advertisements that allow the user to purchase the full text of a citation directly from the journal publisher. The article is delivered via e-mail in PDF format, which may be read using Adobe Acrobat Reader, a program available free at http://www.adobe.com. The cost of these articles is usually $20 to $60. However, some publishers charge only for the most recent articles and make older articles available without charge. Practice Note Other free sites for useful medical information include the Web sites of the National Cancer Institute (http://www.cancer.gov); eMedicine (http://www.emedicine.com); Mayo Clinic (http://www.mayoclinic.com); MD Consult (http://www.mdconsult.com); the National Institutes of Health (http://www.nih.gov); and the National Library of Medicine (http://www.nlm.nih.gov).

(b)

MD Consult

The Internet has many subscription Web sites that require payment before users can access the information on the site. MD Consult (http://www.mdconsult.com) is a subscription Web site that contains the full text, complete with graphics and illustrations, of over forty well-known medical treatises. Users who subscribe to MD Consult can view and print these treatises’ text, illustrations, and graphics. The printout is not formatted exactly like the printed textbook, but the text page numbers and all the text and illustrations on that page are printed. This service eliminates the need to purchase individual, expensive medical textbooks (or at least allows a user to review the textbook before purchasing). Users can search in a specific text or in all texts in the collection. The vision of MD Consult is to serve as more than an online library. MD Consult has been designed to integrate with clinical information systems such as electronic medical records, automated order entry and retrieval, and other decision support systems. This integration allows physicians to research standards of care and treatment algorithms and incorporate this information into the patient record in real time. That is, the physician can research and document a treatment plan as he or she is caring for the patient. As hospitals move to electronic medical

7–7

§ 7.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

records, the medical record may integrate the rationale for a patient’s care as well as the physician’s factual observations.

(c)

National Guideline Clearinghouse

The National Guideline Clearinghouse™ (NGC™) (http://www.guideline.gov) is a comprehensive database of evidence-based clinical practice guidelines. Evidence-based medicine is defined as “the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients . . . integrating individual clinical expertise with the best available external clinical evidence from systematic research.” David L. Sackett et al., “Evidence Based Medicine: What It Is and What It Isn’t,” 312 Brit. Med. J. 71–72 (1996). The NGC is sponsored by the Agency for Healthcare Research and Quality (AHRQ) of the U.S. Department of Health and Human Services. The American Medical Association and America’s Health Insurance Plans (formerly known as the American Association of Health Plans) also had input into the design and implementation of the NGC. The goal of the NGC “is to provide physicians, nurses, and other health professionals, health care providers, health plans, integrated delivery systems, purchasers and others an accessible mechanism for obtaining objective, detailed information on clinical practice guidelines and to further their dissemination, implementation and use.” The NGC Web site also has links to full-text guidelines and ordering information for print copies. The site includes a utility that allows users to generate side-byside comparisons of two or more guidelines. Users may browse the site to search for guidelines for diagnosis and treatment of particular diseases or conditions. Medical guidelines may also be obtained from various medical organizations. The American College of Obstetricians and Gynecologists (http://www.acog.org), the American College of Emergency Physicians (http://www.acep.org), and the American College of Surgeons (http://www.facs.org) also publish guidelines for the treatment of various medical conditions. Although a guideline may not be the per se standard of care for a particular case, published guidelines can help an attorney discover the standard of care for diagnosis or treatment of a medical condition.

(d)

IDEX

IDEX (https://idex.lexisnexis.com) is a useful tool for a lawyer who wants information on an expert witness. It is not a free service; subscriptions to and orders from IDEX can be costly, depending on a lawyer’s needs.

7–8

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.4

The name IDEX reflects the research of and storage of information on expert witnesses—as in, identifying the expert and indexing information on him or her. The site, run by Lexis Nexis, provides an effective means to gather and share information about expert witnesses. Whether an attorney is looking for a particular expert’s witness testimony (either from trial or depositions), disciplinary actions and Daubert challenges, or literature he or she has authored, the IDEX database can help. Its testimonial database alone contains more than 1 million records on nearly 150,000 experts. The network, from which the database is formed, consists of law firms, insurance companies, corporations, and government entities. The way IDEX works is that members of the network submit information on expert witnesses, which is then added to the database (IDEX boasts that more than 30,000 records are added to the database each year). Once a part of the database, it can be searched by users.

(e)

SEAK

SEAK (http://www.seak.com) is another useful resource available to attorneys who are looking for medical experts. It is similar to IDEX in what it has to offer and that there are fees associated with retrieving certain information. Some attorneys avoid using experts identified and listed on SEAK, however, given the fact that it specifically advertises itself as a provider of “expert witness training.” Ultimately, as with all trial strategy, it is up to the individual lawyer to decide whether to use a SEAK-listed expert. Practice Note In a recent trial, a significant portion of an opposing expert’s crossexamination involved the expert’s SEAK listing. Although the expert initially tried to disassociate himself from SEAK, he ultimately discussed its role in training expert witnesses and admitted that he had been listed as an SEAK expert for several years. His particular listing was even published to the jury on a large overhead screen.

(f)

Wikipedia

It may sound peculiar to recommend using as general a Web site as Wikipedia to obtain medical information. However, for the lawyer who simply needs general background information on a particular condition, disease, procedure, etc., Wikipedia’s summary articles can be of great use. As mentioned above, a lawyer simply needs to go to http://www.wikipedia.org and type in his or her search entry, which could be as general as “cancer” or as specific as “signet ring cell carcinoma.” The result will, for the most part, depend on how common the 7–9

§ 7.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

search term’s usage is, the reason being that Wikipedia’s articles are written by volunteers. As the Web site declares, [a]nyone with internet access can make changes to Wikipedia articles. Since its creation in 2001, Wikipedia has grown rapidly into one of the largest reference web sites, attracting around 65 million visitors monthly as of 2009. There are more than 75,000 active contributors working on more than 13,000,000 articles in more than 260 languages. As of today, there are 2,979,786 articles in English. In other words, the more specific and esoteric a search term a user enters, the less likely that a Wikipedia volunteer has prepared an article about it. Obviously, a lawyer might not choose to print a Wikipedia article on renal failure to cross-examine a nephrologist with. For one thing, it is unlikely that any expert would agree that Wikipedia articles are a “reliable authority” such that their contents could be used at trial. An attorney might, however, use that article as a first step in understanding the condition—its symptoms, prognosis, and treatment.

(g)

Google (“The Catch All”)

Although it is a search engine and not a “specialized” Web site, it is worth mentioning again that when all else fails, there is always Google. (Although some would argue that the first step in any search, specialized, medical or otherwise, is a Google search.) Practice Note Keep in mind that an attorney can find an expert in any field by researching that field on the Internet. The methods described in the above discussion on specialized Web sites are not restricted to medical experts. Users can utilize search engines to find experts in nonmedical fields. Likewise, the methods described should not be viewed as the exclusive ways to perform a search for medical experts. The use of search phrases such as “concrete construction standards,” “construction safety,” or “automobile safety” will lead a user to experts in those fields. Another place to look for experts is college and university Web sites. Typing the words “professor” and “traffic engineer” into the Google search engine can lead a lawyer to the names of college professors who might be willing to review, for instance, a negligent highway

7–10

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.4

design personal injury case. At a minimum, a lawyer will obtain contact information.

(h)

Using Medical Information on the Internet During Discovery

Generally, medical reference information available on the Internet has three useful purposes during the discovery process. First, as mentioned above, information on medical Web sites allows an attorney to understand the medicine and issues in any case which will require some form of medical testimony at trial. This is the case in litigation outside of medical malpractice. Personal injury, disability, workers’ compensation, and criminal cases all have the potential to involve issues of medicine. For example, the Mayo Clinic and National Cancer Institute Web sites have concise, detailed, and accurate information on almost all human medical conditions. In a few minutes an attorney can learn much about a disease entity or condition. If an attorney has a thorough understanding of the medical issues involved in a case before consulting an expert, the expert will require less time to discuss the case with the attorney, and the discussion can take place on a higher level. Information obtained by thorough Internet research allows the attorney to understand medical issues, communicate effectively with experts, direct and streamline discovery, and formulate a theory for the case. Second, the Internet allows an attorney to investigate an expert. PubMed lists all medical publications in its database, as well as the authors of articles. This feature can be used to discover what an expert has previously published on a particular topic. IDEX is also invaluable to those looking for prior deposition and trial testimony. (Also, many bar associations maintain databases of expert deposition and trial testimony.) In addition, the Web site of the Rhode Island Board of Medical Licensure and Discipline (http://www.health.ri.gov/hsr/bmld) lists every physician licensed in Rhode Island, including any malpractice payments made and any hospital or board disciplinary actions in the last ten years. The site also contains disciplinary action information that lists all sanctions imposed by the Board of Medical Licensure and Discipline. Another Web site (http://www.docboard.org) contains links to the medical boards in several other states. Third, the Internet is useful for finding experts. By searching on a particular subject, a user can identify physicians who have written research articles on a particular condition. The abstracts in PubMed also include the names of the institutions where the authors practice or do research. Attorneys may then contact a physician-author and inquire as to whether he or she is interested in being an 7–11

§ 7.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

expert witness. Ordinarily, physicians, especially out-of-state practitioners, are willing to discuss cases with Rhode Island attorneys. This is especially true if the issues in the litigation coincide with the physicians’ professional interests.

§ 7.4.2

Web Sites with Personal Information

Search engines like Google can return a tremendous amount of information on individuals. Phone numbers, addresses, news articles, professional associations, and articles in trade or alumni magazines are all examples of information that search engines could return, at no cost, to a user who enters the appropriate query. In order to find as much specific information as possible, a user may have to enter various search terms into the search engine. For example, “John Quintan Public,” “J. Q. Public,” “John Public,” and “John Q. Public” may return different results. The user can refine the search by adding the location, occupation, or both to the search query. Many human resources departments now routinely perform Google searches on prospective employees. Likewise, attorneys may use these searches to locate or research witnesses listed in interrogatory answers or otherwise identified during discovery prior to their depositions. Several other Web sites (e.g., http://www.superpages.com) offer simple, basic ways for a user to look up telephone numbers and addresses. Other Web sites allow more extensive searches of personal information, such as court judgments, bankruptcies, property transfers, and criminal records, for varying fees. Some of these searches are inexpensive (as low as $19) but may return important personal information that easily justifies the cost of the search. Web sites that offer individuals the opportunity to keep and maintain their own “page” have exploded in the last five years. Facebook and MySpace are the two most popular “social networking” sites today, offering anyone with an Internet connection the ability to maintain his or her own personal profile and post virtually unlimited numbers of pictures, videos, and comments. Even sites like Match.com and Classmates.com, among others, can prove useful because of the personal information that members post. If you are looking for personal information on a party or a witness, these sites offer probably the most intimate look at who a person is, what he or she is like, and how he or she will present as a witness. Example Although criminal in nature, a recent case caught the attention of plenty of Rhode Islanders. Two weeks after a twenty-year-old was charged in a drunk-driving crash that seriously injured a young woman, the college junior attended a Halloween party dressed as a prisoner. Pictures from the party showing him in a black-and-white

7–12

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.4

striped shirt and an orange jumpsuit labeled “Jail Bird” were posted on Facebook. Ultimately, the individual pleaded no contest to felony charges of driving under the influence resulting in serious bodily injury and driving to endanger resulting in serious bodily injury. At some point before sentencing, however, prosecutors got their hands on the photos and submitted them to the sentencing judge. At sentencing, the judge said that he could not ignore the photos. He remarked: “For this defendant to think of mocking and joking about his irresponsible, reckless and life-altering dangerous behavior . . . is sick, depraved and disgusting.” The individual was sentenced to two years in prison. In an ironic twist of fate, on a motion to reduce the sentence, the same judge granted the reduction, in part based on evidence adduced of the injured victim’s Facebook profile that displayed a reaction to the sentencing that the judge found inappropriate.

Practice Note As recently as several years ago, most individuals’ personal profiles on sites like Facebook and MySpace were open to anyone who wanted to view them. Given that employers and law enforcement (and moms and dads) have started to use these sites as a way to monitor and track employees, criminal suspects, and children, many users have opted to make their profiles “private.” This essentially allows a user to control who may or may not view his or her profile. Still, however, the number of people who make their profiles open to the public makes searching these sites informally a worthwhile effort. If the profile has been marked “private,” it may be of use to try formal discovery procedures to obtain the content. In that vein, it may be useful to ask in an interrogatory whether and which parties or witnesses are users of social networking sites—if they are, demand to view the profiles and be prepared to analyze the relevance of their content. If relevant, demand that the relevant content be produced and the profiles be preserved. Some have argued that there is an overwhelming privacy interest in the content of these profiles. Thus, production may depend upon whether the site is password protected, who has access to the site, when the site was created and last edited, the function or nature of the site, and whether the postings were created for the purpose of sharing them with others.

Google Maps (http://www.maps.google.com), a mapping Web site that uses satellite imagery and, for some addresses, a “street view” component, allows a user to enter, for example, a person’s home address and in seconds have a view of that person’s home from a satellite perspective and sometimes from the street. The color of the home, the type of car they drive (license numbers are blurred), 7–13

§ 7.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

the way they keep their lawn, etc., are all there for the viewer to observe. While there are obviously those who are concerned about privacy issues, for a lawyer interested in learning as much as possible about a witness before bringing him or her in for a deposition, it does not hurt to have a visual of where that person spends the majority of his or her time. If a lawyer is interested in finding out whether a Rhode Island witness or party has a criminal record, the Rhode Island Judiciary maintains an active list of all such persons. The list is available on the Rhode Island Judiciary Web site at http://www.courts.state.ri.us/default.htm. Once on the Judiciary’s site, a user merely needs to click the “Criminal Information Search” link and he or she will be taken to the criminal database. Following the acceptance of the provisions of the Judiciary’s disclaimer, the search engine can be used by entering either a name or case identifier.

§ 7.4.3

Corporate/Business Information on the Internet

Particularly useful sources of corporate information include the following: • the Securities and Exchange Commission (SEC) Web site, • the individual company or corporation Web site, • news Web sites, and • the Web site of the Rhode Island Secretary of State. Each of these types of sites is discussed in more detail below.

(a)

SEC Web Site—“EDGAR”

The SEC Web site, http://www.sec.gov, contains a database called EDGAR that contains all filings submitted to the SEC. The SEC has refined EDGAR to remove some quirks that made the database difficult to use. In the past, EDGAR searches were arcane. For example, to find filings by IBM Corporation, EDGAR required a user to enter “international AND business AND machines” in the input box. Now the user simply enters the corporate name, “international business machines” (case is not important). Entering “ibm” returns related business entities of IBM Corporation, such as IBM credit entities.

7–14

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.4

Practice Note The SEC provides a comprehensive tutorial on how to use EDGAR; a user can save valuable time by taking the time to go through the instructions.

The SEC assigns a unique identifier, called a CIK (central index key), to identify companies and other registered entities. Although it is not necessary to know the CIK to use EDGAR, using the CIK instead of the company name makes EDGAR easier to use. A user can find a CIK by entering the company’s name into EDGAR’s input box and clicking “search.” (Be sure to include the leading zeroes of the CIK in the input box when using the CIK as a keyword in EDGAR searches.) The filings archived in EDGAR allow users to locate annual 10-K and quarterly 10-Q reports, proxies, and other filings made during the previous week. EDGAR even contains individual mutual funds filings and prospectuses, and archives all prospectuses for mutual funds. EDGAR contains all SEC forms in downloadable PDF format, and provides detailed instructions on how to file completed forms electronically with the SEC.

(b)

Business Web Sites

Another place to look for corporate information is on individual companies’ Web sites. In today’s world, most businesses maintain a Web site. This is true not just for Fortune 500 companies, but even for local “mom and pop” stores. For the lawyer involved in litigation with a business, these Web sites can offer a treasure trove of information. Larger companies, whose Web sites are usually well designed and easily accessible, often maintain an “investor information” section that contains stock prices and histories, SEC filings, press releases, and other information. The state of incorporation is usually listed, as are the different office locations. The names of corporate officers are often readily available. Smaller businesses’ Web sites, however, should not be overlooked. Again, the small company’s places of business are usually listed, as are the names of staff. Often, there are pictures of staff members available. Many businesses’ Web sites contain a section devoted to describing what the business does, what products/services it sells, what it hopes to achieve for its customers/stockholders, etc. Generally, this section is given a generic name such as “About Us.” Sometimes the business calls it a “Mission Statement.” Either way, a section like this can be helpful to the lawyer who is in litigation with a

7–15

§ 7.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

business. Corporate policies and procedures are even available for viewing on some sites. All of these resources can provide clues as to what the corporate attitude is and who the decision makers are, and they can even provide impeachment material. Example In a recent products liability case, the product involved was many years old and had traveled through several businesses’ hands before it reached the plaintiff. The author’s client, a distributor, had been sued directly by the plaintiff. The company that had sold the author’s client the product was impleaded—only to file a motion for summary judgment soon thereafter. In the motion, the impleaded business claimed that it had sold the product “as is” and essentially said that it was obvious that the product was in less than good condition at the time of sale. Although maintaining a colorable contractual defense to the author’s client’s third-party claim, the impleaded business also argued that by selling a used product, it had a limited duty to make sure the product was safe. In preparing his defense to the motion, the author looked to the company’s Web site to see how it advertised itself and described the products it sold. Sure enough, in the “About Us” section, there was an entire paragraph where it was explained how the company meticulously refurbishes and maintains its products before reintroducing them into the market. Although the author and his client were able to defeat the motion on other grounds, if they had had to bring the case to trial, the statement on the company Web site would have undoubtedly been in the author’s trial book.

Because of this, both plaintiffs and defendants in litigation involving businesses should always review their own Web sites and the other party’s Web site before sending out or responding to interrogatories, requests for documents, or deposition notices. If a lawyer is preparing a corporate officer for deposition, he or she should make sure that officer is familiar with what the business has “said” about itself on its Web site. Although there may be a good reason why the CEO does not know why a particular statement about product safety was published on the company Web site, an “I don’t know” or other evasive answer is likely not going to sit well with a group of jurors in a products liability case where the plaintiff was seriously injured.

(c)

News Web Sites

News Web sites also contain corporate information. The major news networks, CNN, Bloomberg, Forbes, the Wall Street Journal, and all major newspapers 7–16

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.4

have searchable Web sites. The user is encouraged to use search engines to find these sites easily and rapidly. Once on the Web site, the user may use the search capabilities within the site to find specific information. Note that some newspaper Web sites charge a small fee to read or download an article in its entirety.

§ 7.4.4

Government Web Sites

It is not just businesses that maintain Web sites with information useful to the litigator; most governmental bodies, state and federal alike, do as well. For instance, the federal IRS Web site not only provides access to the federal tax code and treasury regulations at no cost, but contains guides and bulletins. In Rhode Island, nearly every city and town maintains a public Web site. The State of Rhode Island’s Web site, http://www.ri.gov, not only has information on the administration, but contains links to state agencies and offices. Phone numbers and addresses to state officials are available and forms can be printed out. Like the IRS Web site, links to state statutes and regulations accompany site content on most of the agency pages. Additionally, “mission statements,” organizational charts, information on agency officers, and budgets, among other topics, are available for viewing on these individual agency sites. If you are a lawyer involved in litigation with the federal government, state, or a municipality, or are simply looking to see whether your nongovernmental opponent was in compliance with state law or regulation, government Web sites can provide an inexpensive and easy tool.

(a)

Rhode Island Secretary of State Web Site

The Rhode Island Secretary of State Web site, http://www.state.ri.us, includes a link to its Corporations Division page, which contains extensive information on Rhode Island corporations. Users can “search the corporate database” by entering the corporate entity name, the name of an officer or director, etc. More recent Rhode Island corporate filings (e.g., annual reports) are available in PDF format for download and printing.

(b)

Rhode Island Judiciary

The Rhode Island Judiciary Web site, http://www.courts.ri.gov, displays all court calendars and Supreme Court and trial court decisions, and has a criminal records database.

7–17

§ 7.4

(c)

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Land Records

There presently is no central Internet database for Rhode Island land records. However, some cities and towns do provide some property tax and land record information online. A city-by-city, town-by-town search must be made to determine whether land records are carried online.

(d)

Rhode Island General Assembly

Bills submitted, considered, and/or passed by the General Assembly are available for review at http://www.rilin.state.ri.us/.

(e)

Internal Revenue Service

The Internal Revenue Service Web site, http://www.irs.gov, contains a wealth of information, including downloadable instructions, forms, answers to frequently asked questions, and specialized information for businesses, local governments, charities, and nonprofit institutions. It also contains links to a variety of educational sites and tutorials.

(f)

Weather Information

Information on historical weather conditions can be found at a number of sites, but the National Oceanic and Atmospheric Administration Web site (http://www .noaa.gov) provides certified copies of historical weather conditions.

(g)

Product Safety and Consumer Information

Information on such matters as recalls, accidents, and safety tests can be obtained from the Web sites of the U.S. Consumer Product Safety Commission (http://www.cpsc.gov), the Insurance Institute for Highway Safety (http://www .iihs.org), and the National Transportation Safety Board (http://www.ntsb.gov). For unofficial information on consumer products, sites like Complaints.com and even Amazon.com can give a lawyer a general understanding as to the performance of a product in the marketplace. These sites allow individuals to post complaints about products they have used. Often, the complaints contain information on specific “defects.” Example While investigating a case involving a coffeemaker that had overflowed and allegedly caused second-degree burns to a potential client’s

7–18

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.4

hand and arm, a search of a consumer Web site revealed at least a dozen other complaints about the same type of problem with the same type of coffeemaker—perhaps not admissible evidence, but certainly helpful in evaluating the potential for a claim.

§ 7.4.5

Legal and Legal Education Web Sites

The law is constantly changing; it does not remain the same simply because a particular case enters litigation. As discovery unfolds, it is essential for lawyers to stay on top of the latest updates. A new decision, rule change, or statutory amendment could help (or hurt) your discovery efforts. The Rhode Island lawyer is fortunate to have a number of Internet resources at his or her disposal. Rhode Island Lawyers Weekly maintains a Web site at http://rilawyersweekly .com that is easily accessible for subscribers. The publication provides a weekly update on decisions from the U.S. Supreme Court, the First Circuit Court of Appeals, the District of Rhode Island, the Rhode Island Supreme Court, the Rhode Island Superior Court, and other courts. For those who are not subscribers, there is a limited amount of free information available. In addition, there are the usual fee-charging legal research Web sites, Westlaw and LexisNexis, and free sites like FindLaw (www.findlaw.com) and Cornell’s Legal Information Institute. Other helpful legal Web sites are discussed below.

(a)

PACER

The Web site of the U.S. District Court, District of Rhode Island contains access to court documents in PDF format. The site also allows attorneys to file all pleadings electronically. In order to use these features, the attorney must file the appropriate paperwork with the court. There is a small fee to download and print documents.

(b)

Cornell University’s Legal Information Institute

Cornell University Law School’s Legal Information Institute (LII) has been providing accessible legal information on the Web since 1992. It can be found at http://www.law.cornell.edu. LII is a nonprofit, public service of Cornell Law School that provides no-cost access to current American and international legal research sources. It is generally recognized as the first law Web site developed on the Internet. Its staff 7–19

§ 7.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

electronically publishes on the Web the U.S. Code, U.S. Supreme Court opinions, Uniform Commercial Code, the U.S. Code of Federal Regulations, several federal rules, and a variety of other American primary law materials. LII also provides access to international sources, such as treaties and United Nations materials. LII maintains an extensive collection of law from the U.S. Supreme Court, searchable by party name, authoring justice, or topic. For the lawyer who needs an easy-to-use, inexpensive legal research resource, LII is tough to beat. While its database may not be as extensive as Westlaw’s or LexisNexis’s, its ease of use and free access are a good fit for the lawyer who does not use those services enough to justify paying their fees.

(c)

Law.com

ALM’s Law.com (http://www.law.com) presently is the Web’s leading legal news and information network for attorneys and other legal professionals. It carries national and local legal news stories, legal blogs, Web seminars, jobs, expert witness information, and more.

§ 7.4.6

Finding Extinct Web Sites

Internet Web sites and Web pages come and go. This dynamic aspect of the Internet is one of its best features. However, during the course of litigation, an attorney may want to retrieve a site or page that is no longer available at its original URL. The original owner of the site or page may have simply removed or changed the site, or the owner may have become defunct. The Wayback Machine (http://www.archive.org) and the Internet Archive at the New Library of Alexandria, Egypt (http://archive.bibalex.org) are attempting to archive the entire publicly available World Wide Web. The Wayback Machine contains over 100 terabytes (100 trillion bytes) of data, grows at a rate of twelve terabytes per month, and is the largest known database in the world. To use this service, a user must know the URL as it existed at the time the Web site was on the Internet, and the approximate date the site was available. Some Web sites, by design, cannot be archived. The Wayback Machine cannot archive sites that were password protected when they were available on the Internet or sites that by design thwart the techniques used to archive Web sites.

7–20

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.4.7 (a)

§ 7.4

Miscellaneous Web Sites and Information Refdesk.com

Refdesk.com (http://www.refdesk.com) is a free and family-friendly Web site that indexes and reviews quality, credible, and current web-based reference resources. It contains links to a potpourri of useful facts and information.

§ 7.5

BLOGS, BULLETIN BOARDS, NEWSGROUPS, ETC.

In the early days of the Internet, users communicated by posting questions and messages on electronic bulletin boards. Other users could respond to the questions and comment on the messages. The stream following an original message became known as a “thread.” Because few people other than scientists had access to the Internet, this was a good way to communicate scientific ideas. As more users accessed the Internet and responded to the original message or question, the threads grew exponentially. Eventually, users with similar interests joined together into newsgroups, and when newsgroups became part of the World Wide Web, they evolved into discussion forums. Although information may be found in the threads of a discussion forum, the usefulness of the information is often diluted by opinion, rumor, or falsehood. Currently there are almost 1 billion postings to newsgroups on the Internet. This large number makes it difficult for a user to find specific and useful information. However, special forums have evolved that limit the threads to topics of interest to lawyers (e.g., “alt.lawyers”). The easiest way to understand and use newsgroups and discussion forums is through the Google Groups Web site at http://groups.google.com. Google Groups archives and indexes newsgroup messages so that users can easily search and sort through the millions of threads and messages. Because this site allows a user to search multiple newsgroup archives by name or subject matter, it is easy to find discussion groups of interest to lawyers. Discussion forums are useful for finding information on commercial products. Consumers who have had problems with a product may have posted messages in a discussion forum describing their experiences. By searching the discussion threads, attorneys in litigation involving a particular product may locate consumers who have had problems with the same product.

7–21

§ 7.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Personal blogs have followed a wave of popularity similar to that of personal Web pages. At Google Blogs, http://blogsearch.google.com, they can be searched in the same way that discussion forums are.

§ 7.6

ADMISSIBILITY OF WEB PAGES, WEB POSTINGS, AND OTHER INTERNET EVIDENCE

It was not long ago that a federal District Court judge declared information pulled from the Internet “voodoo information”: While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions. . . . There is no way [to] overcome the presumption that the information . . . discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed. R. Civ. P. 807. . . . Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form. . . . St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999). Courts have come a long way since then—today judges regularly admit into evidence material obtained from the Internet. That is not to say, however, that an attorney should expect a court to do so without adequately and thoroughly examining the proffered Web site or posting to ensure that it meets evidentiary requirements. 7–22

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.6

Generally speaking, there are two types of potentially admissible evidence that an attorney can pull from the Internet. The first type is a document that is downloaded from a Web site, such as a deed from one of the online registries or an article downloaded from a particular database. The second type is a Web page itself, essentially a snapshot of a Web page on a given day. Before a Web page or document obtained from the Internet can be admitted into evidence, the proponent of the evidence must go through the usual evidentiary machinations: show that the document or Web page is relevant under Rule 401, authentic as required by Rule 901(a), not precluded by the hearsay rule, an original or duplicate, and that its probative value is not substantially outweighed by any potential prejudice. See Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007) (discussing the admissibility of Internet and other electronic evidence). Relevancy is usually fairly easy to demonstrate if the proponent has chosen the document carefully. However, because of the virtual nature of the Internet and the lack of understanding about how the Internet works, getting over the next hurdle, authenticity, may be the most difficult. Documents that have been downloaded and printed face the same evidentiary obstacles as photocopies of original documents. However, a judge may be more skeptical of Internet documents. Unless the other party stipulates to the authenticity of an Internet document or responds favorably to a request for admission, a party may not be able to convince a skeptical judge that hackers did not tamper with a Web site, that a party did not tamper with documents printed or downloaded from a Web site, or that the Web site owner actually placed the documents on the Web site. Therefore, establishing the authenticity of the actual Web site, pages pulled off it, or postings made thereon may prove problematic. The proponent of the Internet evidence could have the “webmaster” testify about the authenticity of the Web site. The webmaster is the person responsible for the creation of the Web site and the uploading of documents to the Web site server. The webmaster or other information technologist can also testify concerning the security measures that protect the Web site from hackers and tampering. Keep in mind that hackers have tampered with the most protected Web sites, including Microsoft’s own Web site. In addition, the design and uploading of a Web site in a large organization may involve several people, and it may require extensive discovery just to identify the person who can authenticate the Web site. With respect to the personal postings, photographs, etc., pulled off of sites like MySpace and Facebook, not only would the above have to occur, but the proponent of the evidence would likely have to show that the information posted was actually posted by the party opponent or testifying witness (if he or she will not 7–23

§ 7.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

so admit). Authentication objections arise because it is possible to create a Web page or make postings on a social networking site in another person’s name or to send an e-mail or post a message in another’s name. Therefore, it is difficult to show who actually is responsible for creating material on the Internet. See U.S. v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000) (holding that proponent of Web posting was required to show that it was posted by who she claimed posted as part of foundation for admissibility). With respect to Web pages, postings, and messages, courts across the country have said that they would deal with them in precisely the same manner that they deal with other potential pieces of evidence, via Rule 901: Essentially, appellant would have us create a whole new body of law just to deal with e-mails or instant messages. The argument is that e-mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with is actually witnessed sending the e-mail, there is always the possibility it is not from whom it claims. As appellant correctly points out, anybody with the right password can gain access to another’s e-mail account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen. We believe that email messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa.R.E. 901 and Pennsylvania case law. In re F.P., 878 A.2d 91 (Pa. Sup. 2005); see also Massimo v. State of Texas, 144 S.W.3d 210 (Tex. App.-Fort Worth 2004) (e-mails admissible where the victim recognized the appellant’s e-mail address; the e-mails discussed things only the victim, the appellant, and a few other people knew about; they were written in the way in which the appellant would communicate; and a third party had witnessed the appellant sending a similar threatening e-mail to the victim previously); Kearley v. State of Mississippi, 843 So. 2d 66 (Miss. App. 2002) (e-mails adequately authenticated where victim vouched for their accuracy and a police officer testified that the appellant admitted sending the e-mails); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) (exhibits printed from the Internet, including pictures and Web pages, had sufficient 7–24

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

§ 7.6

circumstantial indicia of authenticity, such as dates and URLs, to support a reasonable juror in the belief the documents are what the proponent says they are); United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000) (e-mails properly authenticated where they bore the appellant’s e-mail address; the reply function automatically dialed the appellant’s e-mail address as the sender; they contained factual details known to the appellant; they bore his nickname; and they were followed up by phone conversations involving the same subject matter); United States v. Tank, 200 F.3d 627 (9th Cir. 2000) (chat room log printouts authenticated where the appellant admitted he used the screen name “Cessna” when he participated in one of the conversations recorded; several coconspirators testified the appellant used that name; and when they arranged a meeting with the person who used the screen name “Cessna,” it was the appellant who showed up). To authenticate a Web page or information or postings pulled therefrom, an attorney should think about doing the following: • obtaining an admission via Rule 36; • having an opponent stipulate to the same; • subpoenaing testimony or obtaining an affidavit from the person who obtained the copy of the Web page, stating when and how the page was copied and affirming that the copy is accurate; • subpoenaing documentation directly from the Web site provider confirming that the copy is what the attorney claims it is; • if the Internet data is from a public source, subpoenaing an officer from the public office to testify as to the material’s authenticity; and • requesting or subpoenaing the metadata of the Internet material sought to be admitted. If none of the above is a realistic possibility, the party wishing to offer the Internet material should think about compiling as much circumstantial evidence proving its authenticity as possible. See Rule 901(b)(4). In that vein, an attorney should think about doing the following: • obtaining testimony of a witness who assisted or observed the creation of the Web page or the writing of the Internet posting or message; • finding evidence of similarities between the contested Web page or posting and an authenticated Web page or posting; and 7–25

§ 7.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• showing that content on the contested Web page connects it the purported author. Once the Web page or posting is fully authenticated, the party who wishes to offer the Web material into evidence will still need to show that there is an exception to the hearsay rule. This may be easily accomplished if the document is a public record, an “admission by party opponent” appearing on the other party’s Web site, a business record, or a learned treatise. However, much of this has not been tested in our courts and is subject to further argument. For a comprehensive discussion on potential hearsay problems with Internet evidence (among other pitfalls) and possible solutions, a read through Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007), is strongly recommended.

7–26

USING THE INTERNET IN DISCOVERY AND INVESTIGATION

EXHIBIT 7A—List of Search Engines Google (http://www.google.com): The most widely-used search engine. Although the precise methods by which Google collects its information are trade secrets, Google generally returns keyword search results based on relevance of content and the number of links to a particular URL from other sites. Bing (http://www.bing.com): Microsoft recently revamped its search engine and unveiled “Bing” to compete more effectively with Google. Yahoo! (http://www.yahoo.com): Handles more search queries than any other search engine except for Google. Yahoo! is also a Web portal that provides access to news, auctions, classifieds, weather, and maps. (Recently, Microsoft and Yahoo! announced a ten-year deal in which the Yahoo! search engine would be replaced by Bing. Searchability (http://www.searchability.com): “A list of multi-subject guides (with descriptions) to thousands of search engines covering hundreds of subjects. Listed in approximate order of size, specificity of subject categories, and some aspects of search engine collection quality.” Lycos (http://www.lycos.com): One of the first search engines available on the Web. Although no longer as popular as Google, Lycos sometimes returns Web sites that Google misses and is worth a shot if you cannot find something on Google or Bing. Ask (http://www.ask.com): A natural-language search engine that lets users ask questions without knowledge of Boolean search techniques. Users simply enter their query in the form of a natural-language question. AltaVista (http://www.altavista.com): Allows users to build and execute complex searches. This may be useful for users who are not familiar with Boolean logic and the construction of complex queries. Dogpile (http://www.dogpile.com): Searches the Google, Yahoo!, Ask, About, LookSmart, Overture, and FindWhat search engines and returns the combined results in one place. Dogpile addresses the well-known phenomenon that different search engines will return different results for the same search queries.

7–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

7–28

CHAPTER 8

Spoliation and Preservation of Evidence Peter J. Cerilli § 8.1

Introduction-Rationale and Purpose .................................. 8–1

§ 8.2

Spoliation and Discovery ..................................................... 8–2

§ 8.3

Remedies for Spoliation ....................................................... 8–3

§ 8.4

§ 8.3.1

Factors Considered in Determining the Remedy .. 8–3

§ 8.3.2

Admissibility Not Required .................................. 8–5

§ 8.3.3

Exclusion of Evidence as a Remedy ..................... 8–5

§ 8.3.4

Dismissal with Prejudice, Default, or Entry of Judgment as Remedies...................................... 8–6

§ 8.3.5

Jury Instruction and Adverse Inference................. 8–6

§ 8.3.6

Reference in Closing and Fair Game .................... 8–7

§ 8.3.7

Criminal Cases ...................................................... 8–8

§ 8.3.8

Spoliation as an Independent Tort ......................... 8–8

Preservation of Evidence in Discovery ............................... 8–9 § 8.4.1

Ethics Considerations............................................ 8–9

§ 8.4.2

Duty Commences Before Litigation ................... 8–10

§ 8.4.3

Preservation Letters..............................................8–11 (a)

Advise Client to Preserve............................8–11

(b)

Notice to Other Parties ................................8–11

§ 8.4.4

Court-Ordered Duty ............................................ 8–13

§ 8.4.5

Opportunity to Inspect......................................... 8–13

§ 8.4.6

Electronically Stored Information....................... 8–13

EXHIBIT 8A—Sample Jury Instruction on Spoliation ................ 8–17 8–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

8–ii

CHAPTER 8

Spoliation and Preservation of Evidence Peter J. Cerilli

Scope Note Beginning with a discussion of the rationale behind preserving evidence and avoiding its spoliation, this chapter then presents several spoliation remedies. It goes on to guide the reader through the duty to preserve evidence and ethical implications of the failure to do so.

§ 8.1

INTRODUCTION-RATIONALE AND PURPOSE

The duty to preserve evidence and the doctrine of spoliation are bedrock principles upon which our system of justice is based. Preservation duties and spoliation remedies are embodied in our case law, ethics rules, and rules of procedure. A fundamental purpose of our jurisprudence and its concomitant search for justice is premised upon the factfinder’s ability to consider all of the relevant evidence at trial. Only if the relevant evidence is preserved, can a trial fairly produce a just result. At its core, the preservation duty arises from basic notions of fairness, ethics, and reason. Failure to preserve evidence that is material or relevant to a disputed matter undermines the ability of our justice system to fairly adjudicate matters and unfairly prejudices the rights of parties. The doctrine of spoliation was developed to ensure that the obligation to preserve evidence will be followed and enforced. Thus, where relevant evidence is destroyed, the law also provides remedies against the party responsible for its loss or destruction. Rhode Island law recognizes this doctrine as omnia praesumuntur contra spoliatiorum, “all things are presumed against a despoiler.” R.I. Hosp. Trust Nat’l Bank v. E. Gen. Contractors, Inc., 674 A.2d 1227, 1234 (R.I. 1996). Application of the doctrine serves as both a deterrent and remedy to level the playing field for litigants and to ensure that courts have the benefit of considering all relevant evidence. Its application can have a significant effect on the outcome of the litigation depending upon the remedy imposed by the court. The 8–1

§ 8.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

remedies vary in their severity and are determined based on the nature of the conduct and the reasons why the evidence was not preserved. It is therefore essential to understand the law in this area in order to be mindful of one’s duties to preserve important and relevant evidence, and in order to ensure that other parties and litigants fulfill their legal and ethical obligation in this regard. The duties and obligations arise early, sometimes before litigation is commenced, when a party has reason to know of a dispute, real or likely. The duty continues throughout the litigation process. Accordingly, active measures to preserve evidence must be taken in order to avoid imposition of spoliation remedies at a later stage in the proceedings. During an era when storage of information, both traditional and digital, is becoming increasingly complex, lawyers must be diligent to preserve all forms of evidence. The failure to take preservative measures can ultimately threaten a client’s rights, as well as the rights of all parties, to a fair and just adjudication. The doctrine of spoliation is firmly established in Rhode Island law and the Rhode Island Supreme Court has turned to traditional definitions of spoliation in its decisional law: “‘Spoliation’ is defined as: ‘[t]he intentional destruction of evidence and when it is established, fact finder may draw inference that evidence destroyed was unfavorable to party responsible for spoliation.’ Black’s Law Dictionary 1401 (6th ed. 1990).” Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183, 184 (R.I. 1999); State v. Barnes, 777 A.2d 140, 145 (R.I. 2001). The doctrine of spoliation’s underlying principles form the basis of certain of Rhode Island’s rules of procedure, both civil and criminal. For example, the Rhode Island courts have recognized that Superior Court Rule of Civil Procedure 37(b)(2), as well as Superior Court Rule of Criminal Procedure 16(a)(4) and (g)2, are procedural embodiments of the spoliation doctrine and the duties to preserve and disclose evidence. Sampson v. Marshall Brass Co., 661 A.2d 971 (R.I. 1995); State v. Morejon, 603 A.2d 730, 733–34 (R.I. 1992).

§ 8.2

SPOLIATION AND DISCOVERY

An opposing party’s discovery responses may give rise to a suspicion or indication that evidence has not been preserved. Whenever there has been a suspected loss of relevant evidence, discovery should be directed at determining the reasons for such loss. This discovery of spoliation conduct establishes an evidentiary foundation for seeking spoliation remedies. Such discovery includes examination of the parties’ general recordkeeping procedures, protocols, document retention policies, electronic data retention policies, or any specific chain of custody measures taken with respect to a particular piece of evidence. The discovery

8–2

SPOLIATION AND PRESERVATION OF EVIDENCE

§ 8.2

may utilize interrogatories, Rule 30(b)(6) deposition notices, and requests for production relating to document retention policies, procedures, and protocols, along with other more specifically aimed discovery requests. It is important to engage in such discovery, because if such evidence of spoliation has not been adequately developed and presented, the court may decline to impose any spoliation remedy. See Cahill v. Gagnon, 794 A.2d 451 (R.I. 2002). A court will not require a spoliation remedy unless there is a specific request, supported by evidence and argument as to the cause of the loss of evidence. Malinowski v. United Parcel Serv., Inc., 792 A.2d 50, 54–55 (R.I. 2002) (plaintiff only implied that defendant mishandled a “tachograph” device so that defendant’s truck’s speed could not be recorded or determined, but the absence of any further evidence or explanation failed to trigger the trial judge’s obligation to impose a spoliation remedy).

§ 8.3

REMEDIES FOR SPOLIATION

In addition to the authority contained in the procedural rules, a court has inherent authority and wide discretion to fashion an appropriate remedy for a failure to preserve relevant evidence. In cases where spoliation has occurred, there is a growing body of case law setting forth a range of remedies. In order to protect a client’s right to a fair trial and enhance the likelihood of success, it is essential to understand what remedies are available and how to obtain the most effective means of redressing the loss of evidence.

§ 8.3.1

Factors Considered in Determining the Remedy

The Rhode Island Supreme Court has identified five factors that may be considered in determining an appropriate remedy for the spoliation of relevant evidence: • the prejudice to the party, • whether the prejudice can be cured, • the practical importance of the evidence, • whether the despoiler acted in good faith or bad faith, and • the potential for abuse if the remedy is not imposed. Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183, 187 (R.I. 1999). The parties must present evidence relevant to these five factors in seeking or defending against spoliation remedy. Consideration of these factors serves the dual purposes 8–3

§ 8.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

of deterring breaches of the preservation duty and at the same time leveling the playing field for the parties. In applying these factors, the court may consider whether the defendant’s conduct was intentional, negligent, or innocent; the length of time since the evidence was lost or destroyed; whether there is an equivalent substitute; the extent to which the party’s proof of its case is prejudiced; the appropriateness of a less drastic sanction; and the public policy favoring trial on the merits versus the deterrent effect of the sanction. See Keene v. Brigham & Women’s Hosp., 56 Mass. App. Ct. 10 (2002); see also Wright, Miller & Marcus, Federal Practice and Procedure § 2284 (2d ed. 1994.) As noted above, the Superior Court Rules of Civil Procedure also give the courts express authority to fashion appropriate spoliation remedies. Spoliation principles are embodied in Super. R. Civ. P. 37(b)(2). That Rule, operating in conjunction with others, expressly permits the court to “make such orders and enter such judgment” as a consequence of a failure to provide discovery. The court is to fashion an order or remedies “as are just.” By its terms, the Rule sets forth the remedies that include, among others, (A) An order that the matters . . . or any other designated facts shall be taken to be established for the purposes of the action . . . ; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting the disobedient party from introducing designated matters in evidence; (C) An order striking out pleadings . . . or a final judgment dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. Super. R. Civ. P. 37(b)(2). Thus, the procedural rules, the courts’ inherent authority to enforce principles underlying the doctrine of spoliation, and a growing body of case law all provide courts with a range of remedies. The severity and harshness of the spoliation remedy imposed depends upon the nature of the conduct surrounding the failure to preserve evidence. The “[d]estruction of potentially relevant evidence obviously occurs along a continuum of fault—ranging from innocence through the degrees of negligence to intentionality.” R.I. Hosp. Trust Nat’l Bank v. E. Gen. Contractors, Inc., 674 A.2d 1227, 1234 (R.I. 1996) (quoting Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir. 1988)). Accordingly, depending on the reasons for the spoliation, there exists a corresponding range of remedies, from 8–4

SPOLIATION AND PRESERVATION OF EVIDENCE

§ 8.3

admonishment of the jury to dismissal of the case. Evidence of bad faith or intentionality is not required for a court to impose a remedy for spoliation of evidence.

§ 8.3.2

Admissibility Not Required

Application of spoliation remedies is not dependent upon determining whether the evidence is ultimately admissible at trial. As a practical matter, when evidence is missing, it is impossible to demonstrate precisely what the evidence would show. For instance, a missing incident report or photograph may contain information that could support or undermine a party’s claim. Without the actual evidence in hand, it may be difficult or impossible to determine whether the missing evidence would have been admissible as to a particular issue. However, a party is “not required to establish that missing evidence would be admissible at trial, but rather must show only that the evidence is relevant and that it is unavailable because of the conduct of the despoiler.” Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 751 (R.I. 2000). This is because the essence of the doctrine is a common sense presumption and inference that the missing evidence was in fact unfavorable to the despoiler. Therefore, a party who fails to preserve evidence runs the risk of being subjected to an adverse inference or other remedy, even if the lost evidence was in fact favorable. It is one thing to lose valuable evidence. It is another thing to compound that loss with an adverse inference or other sanction against the client.

§ 8.3.3

Exclusion of Evidence as a Remedy

When there is an indication or evidence of spoliation, the court may order that certain other evidence offered by the spoliating party be excluded. Excluded evidence may include opinions, reports, or other factual evidence that is contrary to or tends to rebut the lost evidence. Courts have recognized “the inherent authority of the trial court to bar all evidence relating to an expert’s opinion, or even to a party’s case in chief, based on that party’s destruction of critical evidence.” Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183, 187 (R.I. 1999) (citing other jurisdictions). When you obtain evidence of spoliation that prejudices the ability to prove particular facts or opinions, you may file a motion in limine seeking to exclude certain opponent’s evidence relating to that particular issue. This is based upon the goal of preventing one party from having an unfair advantage due to a loss of evidence. While generally this is a less drastic remedy than summary dismissal, depending upon the significance of the evidence, even partial exclusion may ultimately result in a dismissal or judgment. The scope and nature of the evidence to be excluded is largely dependent upon the circumstances of the case and consideration of the five factors, noted above, that courts use to determine the appropriate remedy. Allstate Ins. Co. v. Creative Env’t 8–5

§ 8.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Corp., 1994 WL 499760, 28 Fed. R. Serv. 3d 1352 (D.R.I. 1994) (preclusion of expert opinion on certain issues where loss of evidence prevented opposing party from having full opportunity to inspect).

§ 8.3.4

Dismissal with Prejudice, Default, or Entry of Judgment as Remedies

In the more extreme cases of spoliation, some courts have ordered dismissal. Courts have held that when a plaintiff’s loss or destruction of crucial evidence deprives the defendant of the most direct means of countering allegations, then dismissal of the plaintiff’s case or the entry of summary judgment for the defendant may be appropriate. Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183, 187 (R.I. 1999) (citing cases from other jurisdictions). However, dismissal is usually only appropriate where there is evidence of intentional behavior or fault and the prejudice to the party is substantial. For example, in Sampson v. Marshall Brass Co., 661 A.2d 971 (R.I. 1995), a product liability case, the Rhode Island Supreme Court considered whether Rule 37(b)(2) permits dismissal with prejudice, even when the spoliation is not willful, intentional, or the result of any negligence on the part of the plaintiffs. The court concluded that “in the absence of a record explaining the reasons for the inability of the plaintiffs in this case to produce the missing [product], we are of the opinion that Rule 37(b)(2) does not permit such drastic consequences as dismissal with prejudice.” Sampson v. Marshall Brass Co., 661 A.2d at 971. Conversely, where there is spoliation by the defendant resulting in substantial prejudice to the plaintiff’s case, a court may appropriately deem that liability is established for the plaintiff. See, e.g., Keene v. Brigham & Women’s Hosp., 56 Mass. App. Ct. 10 (2002) (default judgment for plaintiff was appropriate based upon hospital’s inability to produce crucial medical records and information, even in the absence of intentional conduct, pursuant to Rule 37(b)(2)); William T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1143 (C.D. Cal. 1984) (“ultimate sanction” of default judgment was appropriate where defendant destroyed records which it had reason to know were relevant and continued even after court order).

§ 8.3.5

Jury Instruction and Adverse Inference

A less drastic and more common remedy for spoliation is instruction or admonishment to the jury, allowing it to draw certain negative inferences from the spoliation of evidence. This remedy lies at the heart of the doctrine of spoliation: the deliberate or negligent destruction of relevant evidence by a party to litigation may give rise to an adverse inference that the destroyed evidence would have been unfavorable to the spoliation party. It is appropriate for a trial justice to give a spoliation instruction where there is a failure to produce evidence and the 8–6

SPOLIATION AND PRESERVATION OF EVIDENCE

§ 8.3

failing party is unable to provide a satisfactory explanation for the loss. Mead v. Papa Razzi, 899 A.2d 437 (R.I. 2006). A party seeking an instruction is not required to prove that the unavailable evidence in question was in fact destroyed in anticipation of trial. An adverse inference does not arise and an instruction is not appropriate in instances where the destruction of evidence is due to a routine practice and done with no fraudulent intent. Kurczy v. St. Joseph’s Veteran’s Ass’n, 820 A.2d 947 (R.I. 2003). However, a party’s unexplained failure to preserve and produce relevant information during discovery is probably enough to trigger a spoliation instruction. In applying the core spoliation principles, the court instructs the jury regarding adverse inferences that may be drawn from the evidence or the absence thereof. Typically, the jury is informed that one of the parties has been unable to produce certain evidence that was requested by the other party. The court instructs the jury that it must first find deliberate or negligent loss or destruction of the evidence, and second, that it may then draw an adverse inference against the party who destroyed or lost the evidence. See Exhibit 8A for a sample jury instruction on spoliation. The jury is further instructed that the adverse inference is “permissive.” This means that the jury is allowed to make such an inference while weighing the evidence presented at trial. The doctrine of spoliation merely permits an inference that the absent evidence would have been unfavorable to the despoiler. N.H. Ins. Co. v. Roussell, 732 A.2d 111 (R.I. 1999). The issues of whether spoliation actually occurred, whether the explanation for the loss of evidence is credible and satisfactory, and whether an adverse inference will be drawn are all issues which lie within the province of the factfinder. The jury may determine that the lost evidence is not adverse and draw no such inference. If both parties are guilty of failing to preserve the evidence, or where there is no evidence of any deliberate or negligent failure to preserve evidence, a spoliation instruction may not be appropriate. N.H. Ins. Co. v. Roussell, 732 A.2d at 114; Cahill v. Gagnon, 794 A.2d at 452. Conversely, “a showing that a party has destroyed evidence in bad faith or in anticipation of trial may strengthen the spoliation inference,” and result in a harsher instruction. R.I. Hosp. Trust Nat’l Bank v. E. Gen. Contractors, Inc., 674 A.2d at 946.

§ 8.3.6

Reference in Closing and Fair Game

If evidence of spoliation has been admitted in a case, comment during closing argument about the loss or destruction of evidence is ordinarily allowed as “fair game.” Attorneys for both parties can make such an argument. The argument must be based upon evidence that has been placed before the jury and in accordance with the instruction or admonishment of the jury. Therefore, it is essential that counsel have a clear understanding of the court’s instruction to the jury with respect to the spoliation issue. A conference with the trial judge on this issue, 8–7

§ 8.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

before making the closing argument, is advisable to ensure that the attorney remains within the scope of fair-game comment.

§ 8.3.7

Criminal Cases

The spoliation doctrine has been recognized and applied in criminal cases, as well. It is embodied in Rhode Island Superior Court Rule of Criminal Procedure 16(i), which sets forth sanctions for failure to comply with the state’s obligation to provide discovery. The sanctions include, among others, prohibiting the state from introducing into evidence material which was not disclosed or produced. The court considers the same spoliation issues of whether the loss of evidence was due to deliberate conduct or was unintentional in criminal cases. However, in a criminal case, these issues give rise to additional double jeopardy issues that can determine whether a mistrial can be declared and whether the defendant will be subjected to a second trial. State v. Gonzalez, 923 A.2d 1282 (R.I. 2007). Because criminal proceedings involve substantial issues of constitutional law, suppression of evidence, and double jeopardy, a broader discussion of criminal discovery issues is beyond the scope of this chapter. However, for the civil litigator, knowledge of criminal precedent involving spoliation issues may be useful. Since the same core principles are involved in the criminal context, such cases should have precedential value in the civil context.

§ 8.3.8

Spoliation as an Independent Tort

The Rhode Island Supreme Court has not been required to decide whether Rhode Island will recognize the existence of an independent tort based on the spoliation of evidence. However, it is entirely conceivable that where the facts and circumstances demonstrate intentional conduct and that the spoliated evidence was vital to a party’s ability to prevail in a civil action, the Rhode Island courts would recognize such a tort. Likewise, it is also conceivable that under the appropriate facts and circumstances the Rhode Island courts would recognize a duty to preserve evidence and hold that a negligent breach of the duty is actionable. Notably, in Malinowski v. Documented Vehicle Drivers System Inc., 66 Fed. Appx. 216 (1st Cir. 2003), in 2003, after the federal district court dismissed the plaintiff’s spoliation claim on the grounds that Rhode Island would not recognize such a cause of action, the U.S. Court of Appeals for the Third Circuit refused to delve into such “uncharted waters,” as did the District Court and, after assuming that the Rhode Island Supreme Court would recognize an independent tort for spoliation of evidence, dismissed the case on the narrow grounds that the plaintiff had failed to satisfy the elements of such a claim.

8–8

SPOLIATION AND PRESERVATION OF EVIDENCE

§ 8.3

Although many states have refused to do so, some states have affirmatively recognized an independent tort for spoliation of evidence. See, e.g., Rizzuto v. Davidson Ladders Inc., 905 A.2d 1165 (Conn. 2006); Oliver v. Stimson Lumber Co., 993 P.2d 11 (Mont. 1999); Torres v. El Paso Elec. Co., 987 P.2d 386, 404 (N.M. 1999). These courts have reasoned that the tort of spoliation is necessary to compensate the victims of spoliation, and to deter future wrongful conduct. According to these courts, lesser remedies, such as those discussed above, may be inadequate to deter intentional spoliation, and fail to compensate the party who has lost the ability to prove its case. One of the essential requirements of the independent tort is that a party show a direct causal relationship between active spoliation and the inability to prove a lawsuit. Such causes of action are akin to claims based on tortious interference with a prospective business advantage. These claims raise inherent and thorny issues relating to damages and causation. However, the uncertainty of proving damages should not relieve the intentional spoliator from liability to the victim. Rizzuto v. Davidson Ladders Inc., 905 A.2d at 1179.

§ 8.4

PRESERVATION OF EVIDENCE IN DISCOVERY

From the outset of your involvement in a matter, you should consider the issue of preservation of evidence. The duty to preserve evidence and the doctrine of spoliation are opposite sides of the same coin. Application of the doctrine of spoliation is a means of enforcing the fundamental duty to preserve evidence. That duty is grounded upon core notions of ethics, fairness, and basic necessity. The preservation of relevant evidence is essential to the right of a party to establish a claim or defense. Therefore, the duty is embodied in the Rules of Civil Procedure, the Rules of Criminal Procedure, and also the Rules of Professional Conduct.

§ 8.4.1

Ethics Considerations

Rule 3.4(a) of the Rhode Island Rules of Professional Conduct contains an express statement of the duty to preserve evidence. It provides: Rule 3.4. Fairness to opposing parties and counsel. “A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or all unlawfully alter destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. . . .” 8–9

§ 8.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The commentary to the Rule states that it applies to evidentiary material generally, and further notes that “[a]pplicable law in many jurisdictions makes it an offense to destroy material for purposes of impairing its availability in a pending proceeding or one whose commencement can be foreseen.” This clear statement and expression of the duty in the Rules of Professional Conduct highlights an attorney’s obligation to marshal evidence and to advise clients so that relevant evidence will be preserved.

§ 8.4.2

Duty Commences Before Litigation

The duty of parties to retain and produce discoverable information is beyond question. When an event occurs which could reasonably result in litigation or where litigation can reasonably be foreseen, fairness, law, and ethics require that relevant evidence be preserved. Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 751 (R.I. 2000) (there is an “obligation to preserve evidence”). Because the preservation duty is based upon fundamental notions of ethics, it is important to keep in mind that the duty arises even before formal litigation proceedings have commenced. Allstate Ins. Co. v. Creative Env’t Corp., 1994 WL 499760, 28 Fed. R. Serv. 3d 1352 (D.R.I. 1994) (“even where an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action”). Be mindful of this duty and take early action to ensure the preservation of evidence by your own client, and by the opposing party as well. Advise your client of this obligation as soon as possible after becoming involved in the matter. This is not only in the interest of fundamental fairness; there are also practical considerations for doing so. The failure to advise a client to take measures to preserve potential evidence can jeopardize the client’s own interests in a later judicial proceeding. This is because adverse inferences can be drawn from the loss of evidence or harsher remedies can be imposed where the failure to preserve is knowing or negligent. Where a party is on notice of potential litigation, the party is subject to sanctions for actions taken or not taken which prejudice the opposing party’s discovery efforts. Allstate Ins. Co. v. Creative Env’t Corp., 1994 WL 499760, 28 Fed. R. Serv. 3d 1352 (D.R.I. 1994). The client should be counseled and cautioned about the potential adverse consequences which could result from a failure to preserve. Therefore, it is important that you counsel your client and take specific affirmative measures to preserve potential evidence at the earliest possible time. A client should be counseled to avoid even the appearance of intentional or negligent destruction of evidence. Such preservation measures can include establishing clear document and data retention policies; securing and marshaling potential physical evidence; establishing chains of custody for important evidence; segregating 8–10

SPOLIATION AND PRESERVATION OF EVIDENCE

§ 8.4

relevant evidence or data; obtaining appropriate photography; and delineating persons responsible for preservation efforts.

§ 8.4.3 (a)

Preservation Letters Advise Client to Preserve

The most effective way to counsel a client of the duty to preserve evidence is through a well-drafted preservation letter. This letter should be sent to the client as soon as possible after engagement or involvement in the matter. The letter must be prepared in accordance with the particular facts and circumstances of the matter in dispute and in consideration of the nature and capabilities of the client involved, whether it be a sole proprietor or large corporation. The essential elements of a good preservation letter include advising the client to • immediately gather and store items or objects of relevance; • photograph important evidence (serially if necessary); • halt routine destruction of documents; • halt erasure or purging of electronically stored data or to at least segregate potentially relevant information; • secure identity and contact information from potential witnesses; and • avoid handling or testing any physical evidence in a manner that would alter the evidence and possibly preclude future additional testing. Advising a client early on not only serves to preserve valuable litigation evidence, but at the same time protects the client from facing a potential spoliation remedy.

(b)

Notice to Other Parties

It is of equal importance to put other parties on notice of their obligations to preserve potential relevant evidence. Notice serves as an acknowledgment of the disputed matter and imposes upon the other party the legal and ethical obligation for preservation. Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 749 (R.I. 2000) (“an obligation to preserve evidence even arises prior to the filing of the complaint where a party is on notice that the litigation is likely”). The preservation 8–11

§ 8.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

letter serves as an effective deterrent. This is because a party who is charged with notice of a duty to preserve could be subjected to the harsher remedies for spoliation based upon intentional conduct. Early notification to other parties ultimately serves to protect your own client’s ability to use such evidence in the future. The best way to provide notice to the opposing party of an existing or potential dispute is through a preservation letter. It should be sent at the earliest opportunity and, if necessary, even before suit is commenced. Make sure that notice of the dispute sets forth sufficient detail to enable the letter’s recipient to reasonably conclude what likely constitutes relevant evidence. Again, the specific form and content of the letter is largely dependent upon the nature of the dispute, the particular circumstances surrounding the matter, and the nature of the opposing party. The elements of a preservation letter to an opposing party should include the following: • a sufficiently detailed notice of the dispute; • a request to halt destruction of information and evidence by ceasing routine destruction protocols and procedures or segregating relevant evidence from such routines; • a request for preservation of electronically stored information; • a request for preservation and nonalteration of specific items or objects so that future inspection may be obtained (through legal discovery or by court order); • a listing of the categories of documents and information sought and in a format similar to a request for production; and • a request for confirmation or certification of the letter’s receipt. The letter should be sent to the appropriate persons responsible for overall control of the entity and to known counsel for the opposing party. In the case of a corporation, an officer and managing agent are appropriate recipients of such a letter. If the letter is effective, it will serve to protect important relevant evidence. Alternatively, if important evidence is lost or destroyed, the preservation letter can serve as a basis for establishing that any loss of evidence occurring after receipt of notice was due to intentional conduct, bad faith, or faulty negligence, at the very least. Such evidence of notice will have an important bearing upon the right to and the nature of a potential spoliation remedy.

8–12

SPOLIATION AND PRESERVATION OF EVIDENCE

§ 8.4.4

§ 8.4

Court-Ordered Duty

The duty to preserve specific evidence or categories of evidence may arise by court order. You may obtain a preservation order, after making specific requests for production and inspection and filing appropriate motions to compel. The court order should contain specific and detailed directions to preserve evidence. Violations of such an order may result in the “ultimate sanction” of dismissal or entry of judgment against the party violating the order. Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183, 187 (R.I. 1999) (citing cases from other jurisdictions); William T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. at 1456.

§ 8.4.5

Opportunity to Inspect

Preservation of evidence must be accomplished in a manner that allows the opposing party a fair opportunity to inspect such evidence. This means that the evidence should not be altered, due to routine or special testing practices, so as to preserve the fair opportunity to inspect. In instances where one party has inspected or tested evidence, and in the process alters or destroys such evidence so as to prevent the opposing party from having an equal opportunity, a court may order preclusion of any evidence or opinions which are based upon the inspection or test. Allstate Ins. Co. v. Creative Env’t Corp., 1994 WL 499760, 28 Fed. R. Serv. 3d 1352 (D.R.I. 1994).

§ 8.4.6

Electronically Stored Information

In an era when communication and storage of information is becoming increasingly digital, the legal issues surrounding preservation and retrieval of electronically stored information (ESI) become complex. Just as the explosion of digital information has raised new issues with respect to confidentiality and ethics, so too are new issues arising concerning the legal duties and burdens imposed by spoliation doctrines with respect to ESI. The law in this field is still developing as attorneys and litigants look for guidance concerning their responsibilities to preserve such evidence. The nature of ESI is dynamic—such information is changed, revised, and altered over time. The existence of “metadata”—detailed information about the revisional history of a particular document—poses new challenges to the storage and retrieval of information. Also, as even novice computer users are aware, there are a variety of formats and storage capabilities for digital information. It is common practice for computer users to routinely, and often automatically, purge digital information after a certain period. After a known dispute arises, such routine erasure or deletion could run contrary to the well-established duty to preserve relevant information. 8–13

§ 8.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The Rules of Civil Procedure were designed, in large part, to deal with traditional, paper-based documents and records. The rules were adopted in an era when copy machines replaced the carbon copy. Since the explosion of digital storage and manipulation of information, the growth of e-discovery has led to numerous legal opinions providing guidance with respect to application of the rules to ESI. See, e.g., Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D. Mass. 2009) (setting forth guidance as to who should bear the costs for retrieval of ESI and metadata). The rules themselves are being revised expressly to deal with preservation of digital information. For example, Federal Rule of Civil Procedure 37 has been amended to address a problem relating to routine erasure of digital information. Rule 37(e) provides: (e) Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. The effective operation of an electronic storage information system requires the alteration or periodic deletion of information for reasons unrelated to potential or existing litigation. The intent of the Rule is to protect a party from imposition of a spoliation remedy in instances where digital information has been deleted as part of a routine, good-faith practice. The new Rule has been described as an electronic discovery “safe harbor.” The Rule attempts to balance the practical requirements of operating a computer system with the legal and ethical requirements to preserve evidence. Rule 37(e) underscores the importance of preservation letters. The electronic discovery “safe harbor” has its limits. The duty to preserve ESI may arise even before litigation commences. Once a party is put on notice or has reason to know of existing or potential litigation, good faith may require a modification or suspension of the routine destruction of digital evidence. The Advisory Committee Note for Rule 37(e) provides a cautionary note with respect to the good-faith requirement. The note states: The good-faith requirement of Rule 37(e) [formerly Rule 30(f)] means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of a pending or reasonably anticipated litigation, 8–14

SPOLIATION AND PRESERVATION OF EVIDENCE

§ 8.4

intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Once the duty to preserve has been established, by reason of a preservation letter or court order, a party should take reasonable steps to put a “litigation hold” on the destruction of ESI, even as part of a routine practice. Failure to do so may eliminate the safe harbor provided by the Rule and subject the party to spoliation sanctions. The Rhode Island Superior Court Rules of Civil Procedure do not have a specific counterpart to Federal Rule 37(e). However, as discussed above, the doctrine of spoliation and the duty to preserve evidence is well established in our case law, rules of procedure, and rules of professional responsibility. All of the same principles and rationales which underlie the doctrine of spoliation logically apply with equal force to ESI. Under both the Federal and Superior Court Rules of Civil Procedure, a Rule 16 conference for the purpose of establishing agreements for the preservation and production of digital information can be most helpful and will avoid spoliation disputes and imposition of sanctions.

8–15

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

8–16

SPOLIATION AND PRESERVATION OF EVIDENCE

EXHIBIT 8A—Sample Jury Instruction on Spoliation What follows is a jury instruction given by the trial judge in Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744 (R.I. 200), a premises liability case involving allegedly defective stairs. The defendant business had replaced the defective staircase and failed to preserve the original stairs for inspection by plaintiff’s expert. The court admitted evidence of the defendant’s removal of the stairs, replacement and failure to preserve. Additionally, the court allowed introduction of defendant’s inability to produce its employees work schedules which had been requested during the early stages of discovery. Another spoliation issue involved the destruction of photographs taken of the stairway in question. On appeal, the Rhode Island Supreme Court found that the following spoliation instruction, given by the trial justice, “was appropriate”: During the course of this trial, you have heard testimony that one of the parties may have destroyed, may have mutilated certain evidence. When evidence is destroyed, we call it spoliage. Spoliage of that evidence. And under certain circumstances, the spoliation of evidence may, if you find, it is not required[,] that it give rise to an adverse inference, that the spoliated evidence would have been unfavorable to the position of the party who destroyed or mutilated that evidence. Spoliation of evidence may be innocent or it may be intentional, or it can be somewhere in between the two. It is the unexplained and deliberate destruction or mutilation of relevant evidence that gives rise to an inference that the thing which has been destroyed or mutilated would have been unfavorable to the position of the person responsible for the spoliation. If you find that the defendant destroyed or mutilated the stairs, the photographs of the stairs, the schedule of the employees, or any other item, and did so deliberately, then you are permitted to infer that... your consideration of the evidence would have been unfavorable to the defendant’s position in this case. In deciding whether or not the destruction or mutilation of the evidence was deliberate, you may consider all of the facts and circumstances which were proved at trial, and which are pertinent to that particular item 8–17

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

of evidence. You may consider who destroyed it, how it was destroyed, the legitimacy, or the lack of legitimacy in the reasons given for its destruction. You may consider the timing of the destruction. You may consider whether the individual destroying the evidence knew the evidence might be supportive of the opposing party. You may consider whether the spoliation was intended to deprive the court of evidence, as well as other facts and circumstances which you find to be true. You may also consider the extent to which it has been shown that the spoliation evidence would indeed have been unfavorable to the defendant’s position. If the spoliation of the evidence is attributable to carelessness or negligence on the part of the defendant, you may consider whether the carelessness or negligence was so gross as to amount to a deliberate act of spoliation. It is the function of the jury exclusively to resolve factual issues and to decide what it is that really happened here. It is your obligation and duty to zealously guard against any erosion of that function, however unintentional that it might have been.

8–18

CHAPTER 9

Protecting Confidential and Privileged Information Before and During Discovery John L. Calcagni III § 9.1

Introduction .......................................................................... 9–1

§ 9.2

Discovery Framework.......................................................... 9–1

§ 9.3

§ 9.2.1

Scope and Purpose of Discovery........................... 9–1

§ 9.2.2

Super. R. Civ. P. 26(b)(1) ...................................... 9–3

§ 9.2.3

Judicial Discretion in Discovery ........................... 9–3

§ 9.2.4

Limits on Discovery of Relevant and Nonprivileged Information ............................. 9–4

Confidential and Privileged Information ........................... 9–5 § 9.3.1

Trade Secrets ......................................................... 9–5

§ 9.3.2

Medical Records.................................................... 9–7

§ 9.3.3

Privileged Information .......................................... 9–7

§ 9.3.4

Trial Preparation Materials.................................... 9–8

§ 9.3.5

Rhode Island Law of Privileges ............................ 9–9

§ 9.4

Protecting Confidential and Privileged Information Before Discovery................................................................. 9–12

§ 9.5

Protecting Confidential and Privileged Information During Discovery................................................................ 9–15 § 9.5.1

Responding and Objecting to Discovery Requests ......................................... 9–15

§ 9.5.2

Asserting Privileges............................................. 9–16 9–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 9.6

§ 9.7

§ 9.8

§ 9.5.3

Privilege Logs ......................................................9–17

§ 9.5.4

Protective Orders..................................................9–19

§ 9.5.5

Judicial Relief from Protective Orders.................9–21

§ 9.5.6

Responding to Subpoenas ....................................9–23

§ 9.5.7

Protecting Confidential and Privileged Information in Pretrial Submissions ....................9–24

Stipulated or Consent Protective Orders ..........................9–25 § 9.6.1

General Considerations........................................9–25

§ 9.6.2

Types of Stipulated Protective Orders..................9–26

§ 9.6.3

Stipulating to Permissible Use of Confidential Information .................................9–27

§ 9.6.4

“Counsel Only” Protection of Confidential Information .................................9–28

Inadvertent Disclosure........................................................9–28 § 9.7.1

Preventing Inadvertent Disclosure .......................9–28

§ 9.7.2

Effect and Remedies for Inadvertent Disclosure ............................................................9–29

Conclusion ...........................................................................9–30

EXHIBIT 9A—Sample E-Mail ........................................................9–31 EXHIBIT 9B—Sample Fax Cover Sheet.........................................9–33 EXHIBIT 9C—Sample Privilege Log..............................................9–35 EXHIBIT 9D—Sample Motion for Protective Order ....................9–37 EXHIBIT 9E—Sample Protective Order........................................9–39 EXHIBIT 9F—Stipulated Confidentiality Order...........................9–41 EXHIBIT 9G—Sample Stipulated “Counsel Only” Protective Order ................................................................................9–45

9–ii

CHAPTER 9

Protecting Confidential and Privileged Information Before and During Discovery John L. Calcagni III

Scope Note This chapter provides the reader with practical guidance on what to do when discovery takes the form of confidential and/or privileged information. It addresses the scope and limits of such discovery; Rhode Island’s law of privileges; and Rules 26 and 45 of the Rhode Island Superior Court Rules of Civil Procedure.

§ 9.1

INTRODUCTION

This chapter is designed to provide civil practitioners in Rhode Island with guidance on how to protect confidential and privileged information from disclosure during the discovery process. To adequately protect confidential and privileged information, a firm understanding is required of both the scope and limits of discovery; the Rhode Island law of privileges; and Rules 26 and 45 of the Rhode Island Superior Court Rules of Civil Procedure. This chapter provides an overview of these areas of the law in an effort to better educate practitioners on how to best protect their confidential and privileged information before and during discovery.

§ 9.2

DISCOVERY FRAMEWORK

§ 9.2.1

Scope and Purpose of Discovery

The first step to protecting confidential and privileged information from disclosure is understanding the rules of procedure regarding discovery. The Rhode Island Superior Court Rules of Civil Procedure, like most state civil practice 9–1

§ 9.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

rules, are modeled after the Federal Rules of Civil Procedure. The federal rules, which most states have adopted in some manner, were designed to facilitate the philosophy of full disclosure by way of “open discovery.” The goal of open discovery is to create transparency among the parties to litigation in order to obtain “the fullest possible knowledge of all relevant facts” in advance of trial. Hickman v. Taylor, 329 U.S. 495, 501 (1947). This ensures that a lawsuit is not a “sporting event” and that the parties do not engage in trial by ambush. Instead, discovery is founded upon the policy that the search for the truth, via the trial process, should be aided. It is only then, upon discovering the truth, that justice may be served and the parties’ disputes may be fairly adjudicated. Ethics Commentary Rhode Island Rule of Professional Conduct 1.6 addresses an attorney’s obligation to maintain the confidentiality of client communications. In comment 1 of that Rule, the distinction between the attorney-client privilege and the obligation of confidentiality is explained. It states as follows: [T]he attorney client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. The comments to Rule 1.6 also provide guidance concerning a lawyer’s obligation when ordered to reveal confidential information by a tribunal or government entity, at Comment 6: Absent informed consent of a client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4.

9–2

PROTECTING CONFIDENTIAL INFORMATION

§ 9.2.2

§ 9.2

Super. R. Civ. P. 26(b)(1)

In Rhode Island, the scope of permissible discovery is set forth in Super. R. Civ. P. 26(b)(1). Specifically, the Rule provides that [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. In sum, information that is both relevant and not privileged is generally discoverable. If the sought-after information meets these two requirements but is not admissible at trial, it may still be discoverable before trial if it is “reasonably calculated to lead to the discovery of admissible evidence.” Super. R. Civ. P. 26(b)(1). To determine if information is relevant for purposes of discovery (as opposed to admissibility at trial), it is useful to consult the Rhode Island rules of evidence. Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rhode Island courts have consulted and incorporated this definition when analyzing discovery issues. Callahan v. Nystedt, 641 A.2d 58, 60 (R.I. 1994). Practitioners should also consider this “relevant evidence” definition when formulating discovery requests and analyzing discovery requests received from adversaries.

§ 9.2.3

Judicial Discretion in Discovery

The U.S. Supreme Court stated many years ago that the discovery rules “are to be accorded broad and liberal treatment.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). This philosophy is echoed in Rhode Island, where trial courts’ handling of discovery matters is accorded broad discretion. Kelvey v. Coughlin, 625 A.2d 775, 776 (R.I. 1993). The Rhode Island Supreme Court has consistently held that “in granting or denying discovery motions, a Superior Court justice has broad discretion.” Travelers Ins. Co. v. Hindle, 748 A.2d 256, 259 (R.I. 2000) (citing Colvin v. Lekas, 731 A.2d 718, 720 (R.I. 1999)).

9–3

§ 9.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Guidance on interpreting the rules of civil procedure is sparse in Rhode Island case law. As a result, the Rhode Island Supreme Court often consults “the precedents of the federal courts, since the Superior Court rules [of civil procedure] are patterned on the federal rules.” Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989) (citing Smith v. Johns-Manville Corp., 489 A.2d 336, 339 (R.I. 1985); Nocera v. Lembo, 298 A.2d 800, 803 (1973)).

§ 9.2.4

Limits on Discovery of Relevant and Nonprivileged Information

Though the discovery rules are broadly interpreted, a party’s ability to discover relevant and nonprivileged information is not without limitation. Specifically, Super. R. Civ. P. 26(c) provides that [u]pon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Discovery requests for information, though relevant and nonprivileged, may be prohibited or limited by the court. Courts will impose such limits as are necessary to protect the party at whom the discovery request is directed from annoyance, embarrassment, oppression, undue burden, or expense. Super. R. Civ. P. 26(c). Accordingly, practitioners should refrain from propounding discovery requests that harass adversaries, cause unnecessary delay, or needlessly increase the cost of litigation. Super. R. Civ. P. 26(f). Practitioners should also avoid propounding requests to which responding may be unreasonable or unduly burdensome or expensive. Super. R. Civ. P. 26(f). Failure to adhere to these narrow limits on the existing broad scope of permissible discovery may result in unnecessary motions practice and imposition of sanctions against counsel. Super. R. Civ. P. 26(f).

9–4

PROTECTING CONFIDENTIAL INFORMATION

§ 9.3

§ 9.3

CONFIDENTIAL AND PRIVILEGED INFORMATION

Since the focus of this chapter is the protection of confidential and privileged information, practitioners must understand what constitutes both “confidential” and “privileged.” It is important to note the distinction between confidential and privileged information. “Confidential information” is that which is meant to be kept secret and protected from disclosure to unintended persons. Black’s Law Dictionary 294 (7th ed. 1999). It may include documents, communications, trade secrets, and tangible items. Because confidential information is often targeted during discovery, counsel must be ever vigilant to first, identify information reasonably believed to be confidential, and second, take all legal measures necessary to protect against its disclosure before and during the discovery process. Contrary to something that is simply confidential, a privilege is defined as “a special legal right, exemption or immunity granted to a person or class of persons” under the law. Black’s Law Dictionary 1215 (7th ed. 1999). Accordingly, privileged information is that which the law protects from disclosure during the course of a lawsuit. Black’s Law Dictionary 1215 (7th ed. 1999). Privileged information, though also confidential, is most sacred and afforded much higher protection from disclosure than information that is solely confidential. Privileged information cannot generally be acquired or learned of during the discovery process. Because this protection from disclosure contravenes the “open discovery” principles of modern-day litigation, privileges are both limited by law and strictly construed by courts.

§ 9.3.1

Trade Secrets

Trade secrets are confidential information that require protection from disclosure during discovery. The Rhode Island Superior Court Rules of Civil Procedure do not provide definitions for “trade secret or other confidential research, development, or commercial information.” To determine if information constitutes a trade secret, the Rhode Island Superior Court looked to the Uniform Trade Secrets Act, which is codified in R.I. Gen. Laws § 6-41-1(4) (1956). The Parking Co., L.P. v. R.I. Airport Corp., Civ. A. No. P.B. 2004-4189, 2005 WL 419829 (R.I. Super. Ct. Feb. 18, 2005). The act defines a “trade secret” as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by,

9–5

§ 9.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Other than relying on this definition, Rhode Island case law offers no further guidance on the legal standard for determining if something constitutes a trade secret or other type of confidential commercial information. Lacking explicit guidance on trade secrets, other courts have turned to the “trade secret” definition in the Restatement (First) of Torts § 757 (1939). The Restatement provides that “[a] trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him [or her] an opportunity to obtain an advantage over competitors who do not know or use it.” J.T. Healy & Son v. James A. Murphy & Son, 260 N.E.2d 723, 729 (Mass. 1970). The Restatement also delineates several factors to consider when determining if information constitutes a trade secret. These factors are as follows: • the extent to which the information is known outside of the business, • the extent to which the information is known by employees and others involved in the business, • the extent of measures taken by the employer to guard the secrecy of the information, • the value of the information to the employer and to his or her competitors, • the amount of effort or money expended by the employer in developing the information, and • the ease or difficulty with which the information could be acquired or duplicated by others. See Restatement (First) of Torts § 757 cmt. b (1939); Jet Spray Cooler, Inc. v. Crampton, 282 N.E.2d 921, 925 (Mass. 1972). Though the Restatement factors have not been applied by Rhode Island courts, they apparently have persuasive value in neighboring jurisdictions. Accordingly, practitioners seeking to persuade a trial judge that particular information is a trade secret that warrants protection from disclosure should be familiar with the 9–6

PROTECTING CONFIDENTIAL INFORMATION

§ 9.3

“trade secret” definitions and criteria contained in both R.I. Gen. Laws § 6-42-1 and the Restatement of Torts.

§ 9.3.2

Medical Records

Medical records are among the most common forms of confidential information and are often the focus of spirited litigation, particularly during the discovery process. Under both state and federal law, medical records are afforded some degree of protection against disclosure. This protection is due to the sensitive nature of information contained in these records. In Rhode Island, the protection of medical records and health-care information is contained in the Confidentiality of Health Care Communications and Information Act (CHCCIA). CHCCIA protections apply equally to all forms of legal actions. In addition to protections against disclosure, the act also sets forth limited exceptions for disclosure of medical records and the procedure for obtaining them. Practitioners encountering legal issues regarding medical records and health-care information, whether seeking or opposing disclosure, should consult the CHCCIA for further guidance and should take any steps necessary, such as filing motions for protective orders, that will confine dissemination of such records and information to the parties and their experts and will keep them out of the public domain.

§ 9.3.3

Privileged Information

Practitioners tasked with protecting confidential information must be wellversed in the law of privileges. Privileged materials may be immune from disclosure during discovery. Privileges are “not favored in the law,” Moretti v. Lowe, 592 A.2d 855, 857 (R.I. 1991) (citing Jordan v. Court of Appeals for the Fourth Supreme Judicial Dist., 701 S.W.2d 644, 647 (Tex. 1985)), because the immunity they confer “are in derogation of both the common-law and general policy favoring discovery.” Moretti v. Lowe, 592 A.2d at 857 (citing Anderson v. Breda, 700 P.2d 737 (Wash. 1985)); Coburn v. Seda, 677 P.2d 173 (Wash. 1984)). Accordingly, in Rhode Island, privileges are “strictly construed and limited to [their] intended purpose.” Moretti v. Lowe, 592 A.2d at 857. The sources for privileges under Rhode Island law are Super. R. Civ. P. 26, R.I. Rules of Evidence 501, and the Rhode Island General Laws.

9–7

§ 9.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 9.3.4

Trial Preparation Materials

Rule 26(b)(3) of the Rhode Island Superior Court Rules of Civil Procedure codifies the common law work-product rule and affords parties with immunity against disclosing what are known as “trial preparation materials.” Trial preparation material consists of three types of information: • material prepared “in anticipation of litigation or for trial by or for another party or by or for that party’s representative,” Super. R. Civ. P. 26(b)(3); • facts known or opinions held by an expert who has been retained in anticipation of litigation or for trial preparation and who is not expected to testify at trial, Super. R. Civ. P. 26(b)(4)(A); and • the mental impressions, conclusions, opinions, or legal theories of an attorney, Super. R. Civ. P. 26(b)(3). Materials prepared in anticipation, to include preliminary facts and opinions held by experts retained in anticipation of litigation, are afforded a qualified— not an absolute—privilege. As a result, these materials are only discoverable “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Super. R. Civ. P. 26(b)(3). Similarly, the facts and opinions held by experts retained in anticipation of litigation but not expected to testify at trial are discoverable only upon “a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Super. R. Civ. P. 26(b)(4)(B). Practitioners must first attempt to discover these qualifiedly privileged trial materials by requesting them via available discovery tools (i.e., request for production, interrogatory, or deposition) under the rules of procedure. Opposing counsel may object to your request, alleging the “trial preparation material” privilege. Practitioners should respond by filing a motion to compel with the civil motions calendar. To succeed, the moving party must demonstrate a “substantial need” or “exceptional circumstance” for the sought-after information. The third category of trial preparation materials, and arguably the most sacred, constitutes an attorney’s mental impressions, conclusions, opinions, and theories. These materials are absolutely privileged from disclosure and are not discoverable by any means regardless of need or circumstance. Super. R. Civ. P. 26(b)(3).

9–8

PROTECTING CONFIDENTIAL INFORMATION

§ 9.3.5

§ 9.3

Rhode Island Law of Privileges

Familiarity with the privileges available under Rhode Island law is critical to identifying information reasonably believed to be confidential and/or privileged because practitioners must first identify privileged information before considering measures for protection against disclosure before and during discovery. Other than providing protection to three categories of trial preparation material, Super. R. Civ. P. 26 does not define what constitutes “privileged.” The Rhode Island Supreme Court indicates that “[i]n this context, the term ‘privileged’ denotes the recognized exclusions found in the law of evidence.” Fireman’s Fund Ins. Co. v. McAlpine, 391 A.2d 84, 86 (R.I. 1978). This construction of “privileged” is similar to that placed on the federal counterpart of Super. R. Civ. P. 26(b). Fireman’s Fund Ins. Co. v. McAlpine, 391 A.2d at 86 n.1 (citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966), aff’d sub nom. V.E.B. Carl Zeiss, Jena v. Clark, 384 F.2d 979 (1967); Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962)). Privileges only exist under the law where a compelling public policy interest in protecting either confidential relationships or privacy interest is recognized. As privileges are also limited under the law and strictly construed because of their effect of excluding relevant evidence at trial and/or preventing its disclosure during discovery, Rhode Island Rule of Evidence 501 does not contain any specific privileges. Rather, the Rule provides that “[n]othing in these [evidence] rules shall be deemed to modify or supersede existing law related to privilege.” The vast majority of privileges that exist under Rhode Island law is contained in the General Laws. The existing privileges are as follows: • privilege against self-incrimination; • illegally seized evidence, R.I. Gen. Laws § 9-19-25; • attorney-client privilege, Defusco v. Giorgio, 440 A.2d 727 (R.I. 1982); • husband-wife privilege, R.I. Gen. Laws § 9-17-13; • communications to clergymen, R.I. Gen. Laws § 9-17-23; • newsman’s privilege, R.I. Gen. Laws § 9-19.1-2; • informer’s privilege, State v. Souza, 425 A.2d 893 (R.I. 1981); • confidentiality of health care information, R.I. Gen. Laws §§ 537.3-1 through 5-37.3-11; 9–9

§ 9.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• statements and releases by patients in personal injury cases, R.I. Gen. Laws § 9-19-12; • testimony by director/assistant director of aeronautics, R.I. Gen. Laws § 1-4-13; • commercial fertilizer disclosure statements, R.I. Gen. Laws § 2-7-6; • reports of the inspector of apiaries, R.I. Gen. Laws § 4-12-13; • chiropodist’s violation of privileged communications, R.I. Gen. Laws § 5-29-16; • peer review of dentists, R.I. Gen. Laws § 5-31-24; • interception of wire and oral communications, R.I. Gen. Laws § 125.1-11; • evidence relating to paternity, R.I. Gen. Laws § 15-8-16; • improper influence by employer in election campaigns, R.I. Gen. Laws § 17-23-6; • hearings and records on paternity suits, R.I. Gen. Laws § 15-8-17; • records of bank examiners, R.I. Gen. Laws § 19-14-2; • registration and reports of commercial fisheries, R.I. Gen. Laws § 207-3; • records of barbiturates and hypnotic drugs, R.I. Gen. Laws § 2129-10; • confidentiality of drug abuse reporting system, R.I. Gen. Laws § 2128.3-3; • confidentiality of trade secrets; Division of Occupational Health, R.I. Gen. Laws § 23-1.1-15; • vital statistics records confidentiality, R.I. Gen. Laws § 23-3-23; • termination reports of agents, brokers and solicitors, R.I. Gen. Laws § 27-3-14.1; • fire and marine insurance rating, R.I. Gen. Laws § 27-6-27;

9–10

PROTECTING CONFIDENTIAL INFORMATION

§ 9.3

• information reporting fire losses, R.I. Gen. Laws § 27-8.1-4; • insurance company holding systems, R.I. Gen. Laws § 27-35-6; • confidentiality of trade secrets; sanitary and safety requirements, R.I. Gen. Laws § 28-20-32; • disclosure of contents of workmen’s compensation reports, R.I. Gen. Laws § 28-32-5; • confidential information of employment security employees, R.I. Gen. Laws § 28-39-19; • accident reports, R.I. Gen. Laws § 31-26-13; • public assistance records, R.I. Gen. Laws § 40-6-12; • records of alcoholics and intoxicated persons, R.I. Gen. Laws § 40.1-4-13; • confidentiality of mental health records, R.I. Gen. Laws §§ 40.15-18, 40.1-5-26; • licensing of facilities; confidential information, R.I. Gen. Laws § 40.1-24-12; • confidential business corporation tax information, R.I. Gen. Laws § 44-11-21; • powers of tax administrator, R.I. Gen. Laws § 44-28-35; • sales and use taxes—collection, R.I. Gen. Laws § 44-19-30; • taxation of banks, R.I. Gen. Laws § 44-14-23; • Department for Children, R.I. Gen. Laws § 42-72-8; and • legislative and executive privilege, R.I. Const. art. 4, § 6. See R.I. Rules of Evidence 501 advisory committee’s note. Though not specifically enumerated in the advisory committee’s notes to R.I. Rules of Evidence 501, the following two privileges also exist in Rhode Island: peer review of podiatrists, R.I. Gen. Laws § 5-29-20; and peer review of physicians, R.I. Gen. Laws § 23-17-25.

9–11

§ 9.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Privileges should be researched individually to determine their specific applicability. Not all privileges protect against disclosure during discovery. In many instances, privileges solely address inadmissibility of the privileged information at trial. “Admissibility” is not a prerequisite to “discoverability.” Therefore, even though requested information may not be admissible at trial, it may be discoverable before trial if reasonably calculated to lead to the discovery of admissible evidence. Super. R. Civ. P. 26(b)(1). Also, not all privileges apply equally to civil and criminal cases and some privileges have exceptions to their applicability. Further, privileges differ in the manner in which they are waived. Because of the many differences and nuances among privileges, the importance of researching them on a case-by-case basis cannot be overemphasized.

§ 9.4

PROTECTING CONFIDENTIAL AND PRIVILEGED INFORMATION BEFORE DISCOVERY

Protecting confidential and privileged information before discovery is as equally important as protecting it once discovery begins. There is no controlling authority on how to protect confidential information before discovery. Parties are advised to employ common sense and prudent business practices in order to take reasonable measures that protect against the unintended disclosure of confidential and/or privileged material. A party who fails to do so may waive the right to later claim the privilege during discovery or trial. Practitioners should advise their clients accordingly. There is a distinction between facts, which are discoverable, and materials considered confidential and/or privileged, which may be protected from disclosure. Practitioners must know the difference so they can, on one hand, comply with the duties and obligations imposed by the rules of civil procedure, while protecting clients’ interest to confidential and/or privileged materials on the other hand. For a good discussion of this balance, and in the particular context of attorneyclient communications in a corporate setting, see Langley v. Providence College, No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009). In nearby Massachusetts, a court held that a party who handles confidential information must take “all proper and reasonable steps” to protect the confidentiality of the material. J.T. Healy & Son v. James A. Murphy & Son, 260 N.E.2d 723, 730 (Mass. 1970). If the party fails to do so, it may waive its right later to

9–12

PROTECTING CONFIDENTIAL INFORMATION

§ 9.4

raise a privilege once litigation begins and protect this information from disclosure. J.T. Healy & Son v. James A. Murphy & Son, 260 N.E.2d at 730. The steps that are “proper and reasonable” to protect against disclosure of confidential information differ on a case-by-case basis. Parties should analyze their individual circumstance as well as the nature and value of the information they wish to protect from disclosure. For instance, highly confidential information, such as trade secrets and attorney-client communications, should receive the highest level of protection against disclosure to unintended recipients. Alternatively, ordinary confidential information, such as personal data, may not warrant such extreme measures of protection. Courts may be tasked with determining if information is confidential to the extent that it warrants protection. Though Rhode Island law is silent on the issue, “a course of conducting business which necessarily implies a desire on the part of the employer that the information in question is to be kept secret [may be] sufficient.” Risdale Ellis, Trade Secrets § 41 (Baker, Voorhis & Co. 1953) (quoted in USM Corp. v. Marson Fastener Corp., 393 N.E.2d 895, 900 (Mass. 1979)). Courts in other states have highlighted some relevant factors for determining whether a firm’s “course of conducting business . . . necessarily implies a desire . . . that the information in question is to be kept secret.” USM Corp. v. Marson Fastener Corp., 393 N.E.2d at 900 (quoting Kubik, Inc. v. Hull, 224 N.W.2d 80, 91 (Mich. Ct. App. 1974)); accord Harvard Apparatus, Inc. v. Cowen, 130 F. Supp. 2d 161 (D. Mass. 2001); Trent Partners & Assocs., Inc. v. Digital Equip. Corp., 120 F. Supp. 2d 84, 111 (D. Mass. 1999). These factors include the following: • the existence or absence of an express agreement restricting disclosure; • the nature and extent of security precautions taken by the possessor of information to prevent its acquisition by unauthorized third parties; • the circumstances under which the information was disclosed to an employee to the extent that they give rise to a reasonable inference that further disclosure, without the consent of the possessor, is prohibited; and • the degree to which the information has been placed in the public domain or rendered readily ascertainable by third parties.

9–13

§ 9.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

While these factors are not exclusive, they provide a useful checklist for parties handling confidential information. USM Corp. v. Marson Fastener Corp., 393 N.E.2d at 900. Aside from judicial guidance, practitioners should advise their clients not to abandon common sense when possessing, handling, transmitting, and working with otherwise confidential information. New electronic technologies, such as cell phones, e-mail, and fax, may pose risks of inadvertently disclosing confidential information. While these modern technologies have greatly increased the convenience, speed, and efficiency of communications, they also present new dangers of interception or inadvertent transmission of confidential and/or privileged information. Inexpensive measures and common sense office policies may be employed to protect such information from disclosure to unintended parties. Special care should be taken in transmitting privileged or highly confidential material either via the Internet or by fax. A mistyped digit or a hasty “reply to all” can easily lead to a mistaken transmission. A limited measure of protection may be provided by including a “confidential” legend at the bottom of the e-mail (see the sample email legend in Exhibit 9A) or fax cover sheet advising the recipient of the nature of the communications and reserving the right to request that the material be returned if transmitted in error. See the sample fax cover sheet in Exhibit 9B. Practitioners may also work with their clients to identify private or confidential information for which they desire protection from disclosure during discovery. Careful scrutiny is required of written or electronic materials, oral and written communications, trade secrets, proprietary or commercial confidential information, health care information, and other material that may qualify as privileged or confidential. Identifying and designating this information before discovery will facilitate participation in the discovery process. Ethics Commentary The doctrine of absolute privilege applies to defamatory statements made incidental to ongoing judicial or quasi-judicial proceedings. The doctrine of absolute privilege is designed to provide a lawyer with freedom of expression and conduct in his or her effort to secure justice for the client. Words a witness speaks in the course of a judicial proceeding (including during a deposition), provided they are pertinent to the matter being heard, are absolutely privileged—even if they were uttered maliciously or in bad faith. A qualified privilege can be overcome, however, when the plaintiff proves that the person making the defamatory statement acted with ill will or malice. See Mills v. C.H.I.L.D., Inc., 837 A.2d 714 (R.I. 2003) (internal quotation omitted); Kevorkian v. Glass, 913 A.2d 1043 (R.I. 2007). See also

9–14

PROTECTING CONFIDENTIAL INFORMATION

§ 9.4

an order issued in Muna Ahmed, Individually and as Administratix of the Estate of Malek Ahmed v. St. Joseph Health Services of Rhode Island, alias CA No. 07-364-A, et al., by the Rhode Island Supreme Court, in which the court found that “Attorney McBurney’s memoranda and the other listed materials are filled with inappropriate and offensive commentary denigrating opposing counsel’s character and accusing her of misconduct. An attorney’s use of such demeaning and disrespectful language in papers and documents filed with this court cannot be countenanced.” In addition to ordering that the offensive allegations be removed from the pleadings filed by the attorney, the matter was referred to the office of disciplinary counsel by the court.

§ 9.5

PROTECTING CONFIDENTIAL AND PRIVILEGED INFORMATION DURING DISCOVERY

The rules of practice delineate specific procedures for raising privileges when seeking protection from disclosure of allegedly privileged and/or confidential information during discovery. Practitioners must understand these procedures in their written form and practical application in order to properly protect confidential information from disclosure. Failure to properly assert a privilege or adhere to these procedures may result in the waiver of a client’s privilege and sanctions imposed against counsel.

§ 9.5.1

Responding and Objecting to Discovery Requests

During discovery, the parties propound to one another requests for information and/or documentation to learn all relevant facts needed to prepare their respective claims and defenses. A party must respond to all discovery requests to the extent they are not objectionable. Super. R. Civ. P. 33(a). Permissible responses include either disclosing discoverable information within the party’s knowledge, possession, custody, or control, or raising a good faith objection to disclosing the requested information. However, blanket or otherwise general and unsubstantiated objections are impermissible. Cipriani v. Migliori, No. PC 2002-6206, 2005 WL 668368, at 3 (R.I. Super. Ct. Mar. 4, 2005); Donegan v. Jackson, No. NC 2002-0625, 2005 WL 628501 (R.I. Super. Ct. Mar. 4, 2005). The party who resists discovery bears the burden of establishing either lack of relevancy or undue burden. Cipriani v. Migliori, 2005 WL 668368, at 3 (citing 9–15

§ 9.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Oleson v. Kmart Corp., 175 F.R.D. 560, 565 (D. Kan. 1997) (“[t]he objecting party has the burden to substantiate its objections”) (citing Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540 (10th Cir. 1984))); accord G-69 v. Degnan, 130 F.R.D. 326, 331 (D.N.J. 1990); Flora v. Hamilton, 81 F.R.D. 576, 578 (M.D.N.C. 1978); Alexander v. FBI, 192 F.R.D. 50, 53 (D.C. 2000); Burns v. Imagine Films Entm’t, 164 F.R.D. 589 (W.D.N.Y. 1996); Nat’l Beef Packing Co., L.P. v. S. Pac. Lines, 1997 U.S. Dist. LEXIS 17793, 1997 WL 695595 (D. Kan. 1997); Thompson v. Glenmede Trust Co., 1993 U.S. Dist. LEXIS 17070, 1993 WL 197031 (E.D. Pa. 1993); Cadrin v. Trans Spec Truck Serv., Inc., 17 Mass. L. Rptr. 121 (Mass. Super. Ct. 2003). The mere statement that an interrogatory or request for production is “overly broad, burdensome, oppressive and irrelevant” is not adequate to voice a successful objection. Cipriani v. Migliori, 2005 WL 668368, at 3 (citing St. Paul Reins. Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 511–12 (N.D. Iowa 2000) (citing Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) (quoting Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296–97 (E.D. Pa. 1980))). The party resisting discovery “must show specifically how . . . each interrogatory or request for production is not relevant or how each question is overly broad, burdensome or oppressive.” Cipriani v. Migliori, 2005 WL 668368, at 3 (citing Josephs v. Harris Corp., 677 F.2d at 992 (quoting Roesberg v. JohnsManville Corp., 85 F.R.D. at 296–97)). Failure to do so is tantamount to not providing a good faith discovery response and may result in being sanctioned by the court.

§ 9.5.2

Asserting Privileges

One who resists responding to a discovery request or disclosing requested information on the basis that the sought-after information is privileged from disclosure must strictly adhere to the procedural requirements of Super. R. Civ. P. 26(b)(5). The Rule provides that [w]hen a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or other things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

9–16

PROTECTING CONFIDENTIAL INFORMATION

§ 9.5

One resisting discovery on the basis of a privilege “bears the burden of establishing that . . . [the privilege] applies to the communications at issue and that it has not been waived.” Corvello v. New Eng. Natural Gas Co., 243 F.R.D. 28, 33 (D.R.I. 2007) (citing In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003); see also Amgen, Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 289 (D. Mass. 2000) (“The party claiming the protection of a privilege bears the burden of demonstrating, by a fair preponderance of the evidence, not only that the privilege applies, but also that it has not been waived.”)). In addition to containing sufficient information supporting a claim of privilege, the claim also must be asserted in a timely manner. Corvello v. New Eng. Natural Gas Co., 243 F.R.D. at 34 (citing Marx v. Kelly, Hart, & Hallman, P.C., 929 F.2d 8, 12 (1st Cir. 1991)).

§ 9.5.3

Privilege Logs

In federal court, the “universally accepted means” for claiming that requested documents are privileged is raising a valid objection thereto and producing a privilege log. Corvello v. New Eng. Natural Gas Co., 243 F.R.D. at 34 (citing In re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001) (quoting Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1, 1 (D.D.C. 1999))). “The privilege log should: identify each document and the individuals who are parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.” Corvello v. New Eng. Natural Gas Co., 243 F.R.D. at 34 (citing United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) (internal citation omitted)). Further, it must include “a detailed description of the documents to be protected ‘with precise reasons given for the particular objection to discovery.’” Corvello v. New Eng. Natural Gas Co., 243 F.R.D. at 34 (citing Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan. 1994)). Failure by a party claiming a privilege to adequately describe the documents at issue, to sufficiently explain the basis for the privilege, or to assert the privilege in a timely manner may be grounds for rejecting the privilege claimed. Such failures may also constitute “waiver” of the claimed privilege. Corvello v. New Eng. Natural Gas Co., 243 F.R.D. at 34 (citing Dorf & Stanton Communications, Inc. v. Molson Breweries, 100 F.3d 919, 923 (Fed. Cir. 1996) (failure to submit “a complete privilege log demonstrating sufficient grounds for taking the privilege” constitutes a waiver of the privilege claim)). Rhode Island applies a virtually identical approach to privilege logs. A party who withholds information that is “otherwise discoverable” by claiming that it is privileged or subject 9–17

§ 9.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

to protection as trial preparation material is required under S. Ct. R. Civ. P. 26(b)(5) to make this claim expressly and to describe “the nature” of the documents not produced or disclosed in a manner that will enable other parties to assess the applicability of the privilege or protection that is claimed. D’Amario v. State, 686 A.2d 82, 86 n.11 (R.I. 1996). The objecting party must be specific enough in its objections to support the claimed privilege and to provide a means to assess the claim. If a party fails to do so, he or she may be held to have waived the objection, including those based on privilege. Donegan v. Jackson, No. NC 2002-0625, 2005 WL 628501, at 5 (R.I. Super. Ct. Mar. 4, 2005) (citing 8A Wright & Miller, Federal Practice and Procedure §§ 2016.1, 2213 (1994); Rivera v. Kmart Corp., 190 F.R.D. 298, 300 (D.P.R. 2000) (citing Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 12 (1st Cir. 1991))). “[A]t the very least, failure to initially provide privilege logs can entitle the opposing party to costs incurred in bringing a motion to compel, pursuant to Rule 37(a)(4)(A).” Donegan v. Jackson, 2005 WL 628501, at 5. Additionally, where counsel completely fails to provide any privilege log whatsoever, sanctions may be imposed pursuant to Super. R. Civ. P. 26(f)(1). Donegan v. Jackson, 2005 WL 628501, at 5. This combination of federal and state authority clearly sets forth discovery obligations with respect to raising privileges: timely and substantively respond to all discovery requests; assert and articulate objections to those portions of a request that seek privileged information; and in conjunction with a discovery response, attach a valid privilege log. The privilege log, for each document alleged to be privileged, should include the following: • the document type; • the date authored; • the identity of the author and the recipient; • the identity of each person to whom the document was circulated, as well as the date and purpose of circulation; • the purpose for creating the document; • a description of the document’s substance without revealing privileged information; • the precise privilege asserted; and 9–18

PROTECTING CONFIDENTIAL INFORMATION

§ 9.5

• why the opposing party is not entitled to the sought-after document(s) or material(s). See the sample privilege log in Exhibit 9C. This practice ensures compliance with a party’s discovery obligations, timely and appropriate assertion of privilege-based objections, and a party’s right to judicial determination of whether the information is entitled to protection from disclosure.

§ 9.5.4

Protective Orders

Parties may also protect confidential or privileged information from disclosure by moving for a protective order. See the sample motion for protective order in Exhibit 9D. Rule 26(c) of the Rhode Island Superior Court Rules of Civil Procedure, governing protective orders, provides as follows: [u]pon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. The moving party has the burden of establishing good cause for issuance of a protective order. Pub. Citizen v. Liggett Group, Inc., 858 F.2d 775, 789 (1st Cir. 1988). A showing of good cause must include a particular and specific factual demonstration of potential harm to the moving party if a protective order is not issued. Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986) (citing 8 C. Wright & A. Miller, Federal Practice and Procedure § 2035, at 264–65 (1970)). Conclusory and stereotyped statements are insufficient. Anderson v. Cryovac, Inc., 805 F.2d at 7. Federal courts, to which Rhode Island courts often look when applying and interpreting the rules of practice, apply various factors to adjudicate motions for protective orders. Among them, the evidentiary privileges recognized by state law are considered, especially where a moving party seeks protection against the disclosure of privileged material. United States v. Microsoft Corp., 165 F.3d 952, 9–19

§ 9.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

959–60 (D.C. Cir. 1999). Additional factors, such as the public’s interest in disclosure and a party’s need for confidentiality and privacy, are also considered relevant for balancing the competing private and public interests in protective orders. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.21 (1984). If the moving party sustains its burden of establishing good cause, the trial court may prohibit or limit discovery from any person from whom the discovery is sought. Super. R. Civ. P. 26(c). See the sample protective order in Exhibit 9E. If, however, the moving party fails to sustain its burden, “the materials in question should not receive judicial protection” and should be disclosed to the nonmoving party and be made available to the public for inspection. Pub. Citizen v. Liggett Group, Inc., 858 F.2d at 789 (quoting In Re “Agent Orange” Prod. Liab. Litig., 821 F.2d 139, 145–46 (2d Cir. 1987)). Rule 26(c) provides courts with various forms of protective measures when faced with an application for a protective order. The following is a nonexhaustive list of protective measures a court may impose: • deny a party’s discovery request in its entirety; • permit partial discovery of the sought-after information upon specified terms and conditions; • order that discovery be conducted in a method using a discovery tool other than that originally requested (e.g., written interrogatory versus deposition); • order that certain matters not be inquired into during discovery or otherwise limit the scope of permissible discovery; • require that the requested discovery be conducted with no persons present other than those specifically designated by the court; • require that trade secrets or confidential or proprietary information not be revealed in any way to persons other than those specifically designated by the court; • require that a deposition, after being conducted and sealed, not be subsequently opened absent a court order; and • require the parties to file specific sealed documents or information with the court only to be subsequently opened as directed by the court. Super. R. Civ. P. 26(c)(1)–(8). 9–20

PROTECTING CONFIDENTIAL INFORMATION

§ 9.5

Because courts have broad discretion in this protective order analysis, “A court may be as inventive [in fashioning the terms and conditions of a protective order] as the necessities of the case require.” 8 C. Wright & A. Miller, Federal Practice and Procedure § 2036, at 270 (1970). The court’s selection of protective measures is often said to depend on a balancing test, in which “courts balance the harm to defendant against the relevance of and the necessity for the information.” Multi-Core Inc. v. S. Water Treatment Co., 139 F.R.D. 262, 264 (D. Mass. 1991); see also Kleinerman v. United States Postal Serv., 100 F.R.D. 66, 69 (D. Mass. 1983) (“what is essentially involved is a balancing between the plaintiff’s need for disclosure and the defendant’s need for protection”). The discretion is guided—but not necessarily limited—by the various options set forth in Super. R. Civ. P. 26(c). Ultimately, the court should issue an order containing terms and conditions that are just and balance and protect the competing interests of the proponent, who seeks to protect confidential information from disclosure, and the opponent, who seeks to discover all relevant facts necessary to prepare his or her case.

§ 9.5.5

Judicial Relief from Protective Orders

Once a protective order is imposed, a party may seek judicial relief from the order by either moving to modify the order or requesting appellate review of the order and the court’s corresponding decision to permit or preclude discovery. There is no agreement among the courts regarding the standard to modify a protective order. One court has observed that the question of when to modify such an order involved an area of the law best characterized as chaotic, and [apparently] the case law substantiates this view since courts have differed with respect to which party, the movant or opponent, has the burden of persuasion and, once the burden has been allocated, what showing must be made. 85 A.L.R. Fed. 538, § 2[a] (1987). Some courts hold that a party seeking to modify a protective order bears the burden of establishing good cause that the protective order be modified. Guzhagin v. State Farm Mut. Auto. Ins. Co., Civ. A. No. 07-4650 (JRT/FLN), 2009 WL 294305, at 2 (D. Minn. Feb. 5, 2009). This approach is consistent with the “good cause” standard of Super. R. Civ. P. 26(c) required to initially obtain a protective order. 9–21

§ 9.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Other courts, however, apply a more complex “shifting-burden approach.” This approach provides that once the proponent for modification establishes which materials it feels are not confidential, the burden shifts to the opponent to disclosure and modification. The opponent must establish good cause in supporting its need for continued protection of the order. 85 A.L.R. Fed. 538, § 2[a] (1987). In Rhode Island, the standard to modify a protective order is similar to the standard for granting one—judicial discretion upon a showing of good cause. Though there is no on-point judicial authority for this standard, it is the practice of Rhode Island courts when faced with an application to modify a protective order to rely on the judicial discretion of the hearing judge. Practitioners seeking to modify an order should be prepared to establish a specific and particular good cause basis for modification. Examples may include a change in factual circumstances or newly discovered evidence that contravenes previous claims of confidentiality, or alternatively, reason to believe that a previously asserted privilege has since been waived. Similarly, practitioners opposing modification who still claim the need for protection against disclosure should also be prepared to show the court why continued confidentiality is required to protect their clients’ privacy interests. The hearing judge, in applying his or her discretion, will balance the parties’ competing interests of privacy and disclosure and thereafter determine if the previously issued protective order shall be modified or remain in effect as initially ordered. Parties may also seek an interlocutory appeal of a trial court ruling that grants or denies a motion for protective order. The Rhode Island Supreme Court will generally not review interlocutory orders or decrees unless the case falls within one of two well-recognized exceptions: “(1) appeal is allowed from an interlocutory order directing the sale of real or personal property and (2) the court will review an order or decree, which, although in the strict sense interlocutory, possesses an element of finality that action is called for before the case is finally terminated in order to prevent clearly imminent and irreparable harm.” Martino v. Ronci, 667 A.2d 287, 288 (R.I. 1995) (quoting Bendick v. Picillo, 525 A.2d 1310, 1313 (R.I. 1987)). Although a protective order does ordinarily qualify for interlocutory review, sometimes addressing the merits of such an order on interlocutory appeal is warranted to expeditiously terminate the matter and mitigate the accruing costs and expenses of litigation. Manzotti v. Amica Mut. Ins. Co., 695 A.2d 1001 (R.I. 1997). To obtain such interlocutory review, the granting or denying of the order 9–22

PROTECTING CONFIDENTIAL INFORMATION

§ 9.5

must fall within the “imminent or irreparable harm exception” for interlocutory review. Amaral v. R.I. Hosp. Trust Nat’l Bank, 657 A.2d 1069 (R.I. 1995). On appeal, a trial judge’s decision “to allow or to deny discovery is reviewable only for an abuse of discretion.” Kelvey v. Coughlin, 625 A.2d 775, 776 (R.I. 1993). Denial of a party’s motion for protective order is a discovery-related issue, which is reviewed on appeal for abuse of discretion. Bashforth v. Zampini, 576 A.2d 1197 (R.I. 1990). The Rhode Island Supreme Court “will not disturb a decision by a Superior Court justice relating to discovery save for an abuse of that discretion.” Travelers Ins. Co. v. Hindle, 748 A.2d 256, 259 (R.I. 2000) (citing Colvin v. Lekas, 731 A.2d 718, 720 (R.I. 1999)). Thus, in the event a party qualifies for interlocutory review of a protective order, he or she has a formidable burden to prevail on appeal.

§ 9.5.6

Responding to Subpoenas

Practitioners representing nonparties to a lawsuit must also be familiar with the procedures for protecting confidential information. Parties may conduct discovery from nonparty persons or entities with subpoenas. The subpoena is the primary discovery tool for parties to compel the testimony of nonparties at either trial or a deposition. Super. R. Civ. P. 45(a)(2)(A), 45(a)(2)(B). Subpoenas may be also be used to compel nonparties to produce or permit inspection of documentation, materials, or tangible items. Super. R. Civ. P. 45(a)(2)(C). The recipient of a subpoena has a duty to respond and obey its terms. Super. R. Civ. P. 45(d). Failing to do so may result in contempt. Super. R. Civ. P. 45(e). Like all other discovery tools, the use of subpoenas is not without limits. Subpoenas may not impose undue burden or expense upon the person or entity subject to them. Super. R. Civ. P. 45(c)(1). If so, the subpoena may be objectionable. Subpoenas must also allow reasonable time for compliance. Super. R. Civ. P. 45(c)(3)(A)(i). Further, they should not require disclosure of confidential or privileged information. Super. R. Civ. P. 45(c)(3)(A)(ii). Where an issued subpoena violates the aforementioned provisions, the recipient of the subpoena must, within fourteen days of service, file a written objection with the attorney who caused the subpoena to be served. Super. R. Civ. P. 45(c)(2)(B). This protects the recipient from complying with the alleged objectionable terms of the subpoena, absent a court order, which he or she reasonably believes would result in undue burden or expense or the disclosure of privileged information. Persons subject to subpoenas may also proactively move the court to quash or modify a subpoena for these same reasons. Super. R. Civ. P. 45(c)(3)(A). 9–23

§ 9.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

One who files a written objection or moves to quash or modify a subpoena on the grounds that it requests privileged information must expressly claim the applicable privilege and support his or her claim with “a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.” Super. R. Civ. P. 45(d)(2). To do so, persons so responding should prepare a privilege log for the person who caused the subpoena to be issued. Persons resisting compliance with a subpoena that requests production of privileged information may also move the court for a protective order. Filing a written objection or motion in response to a subpoena, accompanied by a privilege log, ensures a timely and proper response to a subpoena, ensures that privileges are preserved, and protects a person’s right to judicial review of whether protection of the claimed privilege is warranted. More importantly, the person responding avoids being held in contempt of court.

§ 9.5.7

Protecting Confidential and Privileged Information in Pretrial Submissions

An issue that often comes up in the context of protective orders relates to the impoundment or protection of confidential or privileged materials that are attached to judicial submissions. Pleadings, motions, and applications filed with the court are public documents and are available for review by third parties simply by visiting the clerk’s office. Because of this fact, practitioners must take necessary steps to protect confidential and privileged information submitted to a court, whether for the official court file or the limited purpose of an in camera inspection. Materials submitted to a court for an in camera inspection should be sealed, labeled, and accompanied by correspondence describing that the enclosed materials are privileged or confidential, are “for the judge’s eyes only,” and are for the limited purpose of an in camera inspection. The best practice is to address the manner in which the materials will be submitted to the judge in advance by contacting the judge’s clerk to determine how the judge ordinarily proceeds. Matters submitted for insertion into court records, which are confidential and have been afforded court-ordered protection against disclosure, should also be ordered sealed by the court that granted the protective order. It is common for protective orders to provide that pleadings, motions, and applications that contain or refer to confidential information be filed under seal. To do otherwise “would make the confidentiality stipulation worthless and hollow,” because “confidential information discovered in th[e] litigation . . . could be disclosed simply by including it in a ‘pleading, motion or application.’” Standard Chlorine v. Sinibaldi, 821 F. Supp. 232, 256 (D. Del. 1992).

9–24

PROTECTING CONFIDENTIAL INFORMATION

§ 9.5

Practitioners have an obligation to refrain from inserting this information into the public court record. However, practitioners cannot unilaterally seal or redact those portions of records that contain confidential or privileged information or enter into stipulations to this effect. Because the public has a constitutionally protected right to access court records, counsel cannot unilaterally impinge upon this right, even if well-intentioned to protect their clients’ interests. Instead, practitioners must apply to the court for a protective order seeking that such records or portions thereof be sealed and include “to be filed under seal” language in the actual protective order. Courts presented with requests to seal or otherwise protect from disclosure information contained in pretrial submissions must balance the constitutionally protected public interest to access to information against the party’s interest to prepare a case for trial without disclosing confidential information to the public, which may negatively impact case preparation. State v. Cianci, 496 A.2d 139, 144 (R.I. 1985). Before issuing an order addressing disclosure of confidential information in pretrial submissions, trial courts apply a four-part test. Protective orders sealing those portions from the court record from public disclosure must • be narrowly tailored to protect those interests sought to be protected, • be the only reasonable alternative to protecting the party’s interest against disclosure, • permit access to those portions of the court record not deemed sensitive or confidential, and • be accompanied by the trial judge’s findings explaining the necessity of the order. State v. Cianci, 496 A.2d at 144.

§ 9.6

STIPULATED OR CONSENT PROTECTIVE ORDERS

§ 9.6.1

General Considerations

The Rhode Island Superior Court Rules of Civil Procedure require moving parties in discovery disputes to certify that they have attempted in good faith to resolve their disputes with opposing counsel before seeking court action. This good faith certification underscores the preferred practice for parties to agree upon or work through discovery differences, where possible, before seeking judicial relief. 9–25

§ 9.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

This same philosophy is prevalent with protective order practice, particularly in connection with commercial litigation. Parties are generally free to negotiate restrictions on the receiving parties’ rights to use or disseminate confidential discovery material. The agreed-upon restrictions are then submitted to the court in the form of a stipulated protective order and are endorsed by the court in the form of an order. See the sample stipulated confidentiality order in Exhibit 9F. Courts greatly favor these stipulated orders and accordingly permit parties broad latitude in crafting them. Courts rarely scrutinize stipulated orders submitted by and with the consent of all parties.

§ 9.6.2

Types of Stipulated Protective Orders

There are three types of stipulated protective orders: specific, umbrella, and blanket. Specific protective orders cover only particular documents—or categories of documents—identified in the text of the order itself. To the extent that material is not specifically identified in the text of the order, it is not treated as confidential, and presumably may be used by the receiving party for any permissible purpose. Jepson, Inc. v. Makita Elec. Works, 30 F.3d 854, 858 (7th Cir. 1994) (“[a]bsent a protective order, parties to a law suit may disseminate materials obtained during discovery as they see fit”). Umbrella protective orders provide that all of the parties’ discovery material is treated as confidential, without exception, and without provision for a judicial finding of “good cause.” Although parties continue to submit—and courts continue to approve—this type of order, the actual scope of protection they offer is unclear. For instance, if a party later challenges or seeks to modify the confidential treatment of material covered by the order, a court may not be dissuaded by the order from conducting judicial analysis to determine whether the designated material is, in fact, subject to continued protection. Anderson v. Cryovac, Inc., 805 F.2d 1, 7–8 (1st Cir. 1986) (noting that umbrella orders raise constitutional issues because the designations of material for judicial protection are unsupported by any finding of “good cause”). The third and most common type of stipulated protective order—blanket— enables parties to designate, at the time of production, materials they feel, in good faith, are confidential. The receiving party typically reserves the right to challenge that designation in specific instances. The court reserves the right, in the event of such a challenge, to determine whether the material is actually subject to protection. Although blanket protective orders are “routinely agreed to by the parties and approved by the court in commercial litigation,” Bayer & Miles, Inc. v. Barr Labs., Inc., 162 F.R.D. 456, 465 (S.D.N.Y. 1995), they present problems of overdesignation. Because the producing party has the right to designate 9–26

PROTECTING CONFIDENTIAL INFORMATION

§ 9.6

materials, “a party seeking delay may designate as confidential . . . materials that do not really warrant special treatment—with the knowledge that its adversary’s price for undoing that designation may be a substantial delay in the course of the proceeding.” Walpin & Lange, “Handling Sensitive Materials: Problems with Confidentiality Agreements,” Nat’l L.J. (July 29, 1985), at 18.

§ 9.6.3

Stipulating to Permissible Use of Confidential Information

Protective orders also vary in the use they permit of materials designated by the producing party as confidential. Thus, practitioners must carefully draft orders that precisely designate which materials are confidential and set forth plain and clear parameters or restrictions for disclosure. For instance, the least restrictive type of order simply provides that discovery material should be used only for purposes related to the prosecution or defense of the action in which discovery is made. Practitioners are cautioned that this type of order may be too vague because it is left to the receiving party to decide which uses and types of dissemination are case related. Another form of order of which practitioners should also be wary permits the receiving party to retain, use, and disclose discovery materials, so long as he or she refrains from their disclosure to certain specified parties (e.g., the disclosing party’s competitors or the news media). One weakness with this type of order is the difficulty of enforcement. Although the signatories to the order are precluded from making disclosures directly to parties denoted as “forbidden,” there is little to prevent them from disclosing to other third parties, who may in turn disclose the confidential information to “forbidden” parties outside the court’s jurisdiction. Under this form of order, disclosure is almost always permitted to outside counsel (including their staff, clerical contractors, and suppliers); the court and court officials involved in the litigation; court reporters, including deposition stenographers; in-house counsel; and expert witnesses and consultants involved in the case. In some cases, it may be appropriate for a protective order to provide that before any information is disclosed to individuals who are not parties to the litigation, the names of said individuals will be provided to the party who produced the information in discovery, and that party will be given an opportunity to object to the disclosure. If the party objects to disclosure, and the receiving party nonetheless insists on disclosing the material, this provision enables the producing party who objects to disclosure to approach the court for further specific protection.

9–27

§ 9.6

§ 9.6.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

“Counsel Only” Protection of Confidential Information

“Counsel only” protective orders are appropriate for certain types of extremely confidential or sensitive information. See the sample stipulated order in Exhibit 9G. These orders provide that information may be disclosed only to the receiving party’s outside counsel, and not to business executives or personnel, in-house legal staff of the party itself, other party representatives, or nonparties. Although once disfavored, these orders are now more common, particularly in cases where the matters at issue are highly valuable trade secrets, and the adverse parties are direct business competitors who could significantly benefit from discovering this information. The obvious drawback of “counsel only” orders, from a receiving party’s perspective, is that they may significantly impair counsel’s ability to fully consult with his or her client and to prepare the client for cross-examination. When negotiating a “counsel only” protective order on behalf of a receiving party, take extra care to reserve the right to challenge a producing party’s “counsel only” designations. Further, “burden shifting” provisions, in which the producing party has the burden of seeking protection from the court in the event of a challenge to its “counsel only” designation, may be particularly appropriate in this context.

§ 9.7

INADVERTENT DISCLOSURE

Parties and practitioners must be vigilant against inadvertent disclosure of confidential or privileged material. Some courts have held that any disclosure of privileged information to an unauthorized party—even if inadvertent—risks a full waiver of privilege. Specifically, the First Circuit Court of Appeals has held that a privilege may be lost or impliedly waived by inadvertently disclosing privileged documents and/or by failing to take prompt corrective action upon learning of the error. Texaco P.R., Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867, 883 (1st Cir. 1995). These draconian effects necessarily implicate heightened security measures on the part of the holder of such information.

§ 9.7.1

Preventing Inadvertent Disclosure

To prevent inadvertent disclosure of privileged material and to avoid any confusion about what is and is not privileged, privileged material should be carefully and prominently labeled, in bold type, on every page. Legal letterhead should be used where the authors of documents are lawyers. To the extent possible, privileged material should be segregated from other material in a client’s files, and access 9–28

PROTECTING CONFIDENTIAL INFORMATION

§ 9.7

should be strictly limited to those persons (i.e. counsel, management, the parties, and specifically identified employees) directly involved in the matter on which legal advice is being sought. On those occasions where privileged communications involve an employee who does not deal routinely with lawyers, the employee should be briefed on the nature of the privilege, the sensitivity of the material, and the importance of preserving the privilege by avoiding undue dissemination.

§ 9.7.2

Effect and Remedies for Inadvertent Disclosure

Rhode Island case law remains silent on the legal standard for inadvertent disclosure. Some courts have held that any disclosure of privileged information to an unauthorized party—even if inadvertent—risks a full waiver of privilege. Overall, courts differ on the consequences to the producing party if, despite due precautions, privileged material is inadvertently disclosed. The following three approaches find support in the case law: • the “never waived approach,” which holds that a merely negligent disclosure can never effect a waiver of privilege because the party lacks a subjective intent to waive the privilege (see Corey v. Norman, Hanson & DeTroy, 742 A.2d 933, 941–42 (Me. 1999)); • the “strict accountability approach,” under which any disclosure constitutes a waiver, “regardless of whether the disclosure was ‘inadvertent’ or purposeful” (Int’l Digital Sys. Corp. v. Digital Equip. Corp., 120 F.R.D. 445, 448–49 (D. Mass. 1988)); and • the “middle test approach,” which considers the totality of the circumstances relating to the inadvertent production, including “(1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the amount of time it took the producing party to recognize the error; (3) the scope of the production; (4) the extent of the inadvertent disclosure; and (5) the overriding interest of fairness and justice.” (Amgen, Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 290–92 (D. Mass. 2000); see also Milford Power Ltd. P’ship v. New Eng. Power Co., 896 F. Supp. 53 (D. Mass. 1995)). Though Rhode Island courts have not yet spoken on this issue, the Federal District Court of Rhode Island has found it difficult to justify the harsh result of finding that a privilege is waived upon an inadvertent disclosure of privileged material. This court finds that, when presented with an inadvertent disclosure, it is more useful to devise a remedy that preserves the privilege to the extent possible without unfairly penalizing the party to which inadvertent disclosure was made. Corvello v. New Eng. Natural Gas Co., 243 F.R.D. 28, 38 (D.R.I. 2007). 9–29

§ 9.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Aside from this case, Fed. R. Civ. P. 26(b)(5)(B) also provides some guidance on how inadvertent disclosure should be handled. Specifically, the Rule provides that [i]f information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify nay party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. This places the onus on the receiving party to return or otherwise destroy the inadvertently received privileged information, and apparently restricts the party from benefiting from information learned via the inadvertent disclosure. Because Rhode Island law has no authority on the standard and remedies applicable to inadvertent disclosure, practitioners who encounter these issues should turn to the federal rules and case precedent for further guidance.

§ 9.8

CONCLUSION

Confidential and privileged information are integral to modern-day litigation. This information is encountered, handled, transmitted, acquired, and often sought after during discovery in the day-to-day practice of law, regardless of practice area. Because of this unavoidable truism, practitioners and their clients must remain ever vigilant to protect their confidential information from both intentional and inadvertent disclosure to unintended recipients. The best practitioners will protect their clients’ privacy interests in this information by educating them on the law of privileges, cautioning them on the potential effects and consequences of inadvertent disclosure, and assisting with development and implementation of sound business practices to protect disclosure of confidential information before discovery. These practitioners will remain astute once litigation begins by recognizing discovery requests that target or encompass privileged or confidential information and utilizing tools contained in the rules of procedure to protect against its disclosure. 9–30

PROTECTING CONFIDENTIAL INFORMATION

EXHIBIT 9A—Sample E-Mail PRIVILEGED ATTORNEY CLIENT COMMUNICATION TEXT . . . Attorney Name Firm Name Firm Address Email address Website Direct Phone: Direct Fax: General Phone: General Fax:

-----------------------------CONFIDENTIALITY NOTICE----------------------------This message is intended only for the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If you are not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited, and you are requested to please notify us immediately by telephone, and return the original message to us at the above address.

9–31

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

9–32

PROTECTING CONFIDENTIAL INFORMATION

EXHIBIT 9B—Sample Fax Cover Sheet [LAW FIRM NAME] [ADDRESS] [TELEPHONE] [FAX NUMBER] TELECOPY TRANSMITTAL SHEET Number of pages being sent

-

-

(including this page)

DATE: TO: FAX NUMBER: PHONE NUMBER: FROM: RE:

This fax is being transmitted from a RAPICOM 230. If you do not receive all of the pages, or if any part is illegible, please call us at , Ext. . TIME SENT:

OPERATOR:

CHARGE NO.

THIS TRANSMITTAL IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS TRANSMITTAL IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE TRANSMITTAL TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA U.S. MAIL.

9–33

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

9–34

PROTECTING CONFIDENTIAL INFORMATION

EXHIBIT 9C—Sample Privilege Log

9–35

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

9–36

PROTECTING CONFIDENTIAL INFORMATION

EXHIBIT 9D—Sample Motion for Protective Order STATE OF RHODE ISLAND KENT, SC JOHN DOE, Plaintiff VS. JANE DOE Defendant

} } } } } } } } } }

SUPERIOR COURT

C.A. No: (Insert)

PLAINTIFF’S/DEFENDANT’S MOTION FOR PROTECTIVE ORDER Pursuant to R.I. Rule of Civil Procedure 26(c), Plaintiff/Defendant in the above-captioned matter hereby moves this Honorable Court for a Protective Order against production or disclosure of (Insert description of document, information or tangible item for which you seek protection against disclosure). FACTS (Description of above) (Basis for good cause against production or disclosure) In order to rule upon this motion, Plaintiff/Defendant requests the Court to conduct an in camera inspection of (insert paragraph 1 parenthetical), which have not been disclosed to Plaintiff/Defendant. Counsel will provide the materials to the Court at the time of the hearing in the event that the Court deems it necessary or advisable to view the materials and grants the request for in camera review. Plaintiff/Defendant, By his/her/its Attorney, (Counsel) (Bar Number) (Firm Name) (Address) (City) (State) (Zip Code) (Phone) (Fax)

9–37

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

NOTICE OF HEARING PLEASE TAKE NOTICE that the above Motion for Protective Order will be called for hearing before this Honorable Court on the (day) of (month), (year), at (time) or as soon thereafter as the Court may see fit. (Counsel) (Bar Number) CERTIFICATE OF GOOD FAITH PURSUANT TO Rule 37(a)(2), Plaintiff has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. (Counsel) (Bar Number) CERTIFICATION I hereby certify that on this ___ day of ________, 200_, I caused a true copy of the within document to be mailed by regular mail, postage prepaid to the following counsel of record: (Name of Opposing Counsel) (Firm Name) (Address) (City) (State) (Zip Code) (Name) (Title)

9–38

PROTECTING CONFIDENTIAL INFORMATION

EXHIBIT 9E—Sample Protective Order STATE OF RHODE ISLAND KENT, SC JOHN DOE, Plaintiff VS. JANE DOE Defendant

} } } } } } } } } }

SUPERIOR COURT

C.A. No: (Insert)

ORDER DENYING/GRANTING PLAINTIFF’S/DEFENDANT’S MOTION FOR PROTECTIVE ORDER This matter came on for hearing before the Honorable Justice (Name) on (Date), upon Plaintiff’s/Defendant’s Motion for Protective Order. After a hearing and in-camera review in this matter, it is hereby ORDERED 1.

That Plaintiff’s/Defendant’s motion is DENIED/GRANTED in whole/in part.

2.

That (insert description of document, information or tangible item that is ordered to be disclosed or protected).

3.

That this ruling is limited to the discovery phase of this litigation and does not limit or preclude the parties from filing motions with the Trial Court to exclude or otherwise limit admissibility of any portion of the materials referred to in paragraph 2 above. This Court leaves it to the trial justice to determine if these records are relevant for trial.

ENTERED as an Order of this Court on this _____ day of ___________, 2008. ENTER:

PER ORDER:

(Judge’s Name)

(Clerk)

9–39

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Order Prepared and Submitted by:

(Counsel) (Bar Number) (Firm Name) (Address) (City) (State) (Zip Code) (Phone) (Fax)

CERTIFICATION I hereby certify that on this ___ day of ________, 200___, I caused a true copy of the within document to be mailed by regular mail, postage prepaid to the following counsel of record: (Name of Opposing Counsel) (Firm Name) (Address) (City) (State) (Zip Code)

(Name) (Title)

9–40

PROTECTING CONFIDENTIAL INFORMATION

EXHIBIT 9F—Stipulated Confidentiality Order STATE OF RHODE ISLAND KENT, SC ABC CORPORATION, Plaintiff VS. XYZ CORPORATION Defendant

} } } } } } } } } }

SUPERIOR COURT

C.A. No: (Insert)

STIPULATED PROTECTIVE ORDER GOVERNING THE DISCLOSURE AND USE OF DOCUMENTS, TESTIMONY, AND OTHER INFORMATION The undersigned parties, by their counsel, hereby stipulate that the following procedures shall govern the production and use of all documents, testimony, and other information produced by any party in this litigation, or provided by any witness, in connection with the discovery and trial of this matter, to the extent the party or witness wishes to invoke the procedures set forth herein: 1. The party responding to a request for discovery or information (the “Producing Party”) may designate as CONFIDENTIAL any document, deposition testimony, or other information which the Producing Party, in good faith, believes to contain or reflect confidential personnel information, a trade secret, or research, development, financial, commercial, or other information which the Producing Party deems confidential. Such designation shall be made at the time that the information is produced or furnished or promptly thereafter by stamping each page of all such documents or other information with the word “CONFIDENTIAL.” Documents or other information designated as CONFIDENTIAL in accordance with the terms of this Confidentiality Agreement are hereinafter referred to as “CONFIDENTIAL MATERIAL.” 2. All CONFIDENTIAL MATERIAL which is produced in this litigation shall be used for purposes of this litigation only and for no other purpose. There shall be no limitation on the use of CONFIDENTIAL MATERIAL in connection with this litigation other than the limitations set forth herein. All CONFIDENTIAL MATERIAL which is produced, in this litigation shall be retained by outside counsel and not disclosed to any person other than:

9–41

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

(a) outside counsel and their shareholders, members, associates, employees and individuals or entities who usually provide clerical and office support to such outside counsel; (b) the parties’ in-house counsel, employees, and individuals or entities who usually provide clerical and office support to such in-house counsel; (c) the parties, the defendant’s malpractice insurance carrier, and those present and former employees of the parties, whose participation is reasonably required for the prosecution or defense of the Action, provided that each such person first reads this stipulated protective order and agrees to be bound by it, by executing a copy of the Agreement attached hereto as Exhibit A; (d) the Court and court personnel, including court reporters and stenographers employed in connection with this Action; (e) experts or consultants, and their employees and clerical and support staff, retained or employed in good faith to assist a party in the valuation, prosecution, or defense of the Action, provided that each such expert or consultant agrees to be bound by the terms of this Stipulation; and (f) any person or entity whose deposition is properly noticed in this action, provided such person or entity first reads this stipulated protective order and agrees to be bound by it, by executing a copy of the Agreement attached hereto as Exhibit A. 3. If any party wishes to disclose CONFIDENTIAL MATERIAL to any person other than those identified in Paragraph 2 above, it shall provide the Producing Party at least seven (7) days notice in writing identifying both the person to whom disclosure is proposed and the information that the Party proposes disclosing. Such disclosure shall not occur except upon the written consent of the producing person, which shall not be unreasonably withheld, or upon leave of Court. 4. Where any party wishes to file or submit to the Court any document or other information (or part thereof) that refers to, comprises, is derived from, or incorporates any CONFIDENTIAL MATERIAL, it shall provide at least ten (10) days notice in writing to all parties so that any party may motion the Court for a protective order directing that the materials shall be filed under seal. In the event that the Court, after hearing, determines that the CONFIDENTIAL MATERIALS shall be filed under seal, all parties will file such MATERIALS only in accordance with the findings and procedures established by the Court. 9–42

PROTECTING CONFIDENTIAL INFORMATION

5. The restrictions set forth in this Stipulation shall not apply to any document or other information that was properly in the public domain or is acquired in good faith from a third party who had the right to disclose such information. Nothing herein shall prevent any of the parties from disclosing publicly any of their own CONFIDENTIAL MATERIAL as they deem appropriate. 6. If counsel for any party objects in good faith to the designation by the Producing Party of any document, testimony, or other information as CONFIDENTIAL, counsel for that party shall so notify counsel for the Producing Party, which notice shall identify the document, testimony, or other information. If the parties are unable to resolve the disagreement to their mutual satisfaction, they may either individually or jointly seek relief from the Court upon at least 5 business days’ notice to the other affected parties, unless good cause exists for a shorter notice period, and all parties will cooperate in obtaining a prompt hearing concerning the same. Until the Court rules on the party’s application or the disagreement is otherwise resolved, the document, testimony, or other information shall continue to be treated as CONFIDENTIAL. 7. Nothing in this Stipulation shall be construed to constitute a waiver of any party’s right: (a) to oppose discovery on any ground (other than that the same constitutes or contains a trade secret or confidential information of such party); or (b) to object on any ground to the admission of any document, testimony, or other information in evidence at the trial of this Action. 8. Nothing herein shall preclude any party from seeking an order from the Court that any portion of a deposition, hearing, or trial proceeding be closed to the public for the purpose of taking testimony with respect to information designated as CONFIDENTIAL. 9. Within 30 days after the termination of this Action, including any appeals, or at such other time as the parties agree, all parties shall return or destroy all CONFIDENTIAL MATERIAL, including but not limited to copies, summaries, and excerpts of CONFIDENTIAL MATERIAL. Notwithstanding the foregoing, counsel for each party may retain their work product, such as pleadings, correspondence, and memoranda, which contain CONFIDENTIAL MATERIAL, provided that all such information shall remain subject to this Order and shall not be disclosed to any person except as provided by this Order. 10. This Stipulation shall not prejudice a party’s right to seek to amend, modify, or change the terms of this Stipulation by written agreement between the parties (and relevant third parties, to the extent that their interests are affected), or by Order from the Court.

9–43

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

11. This Stipulation is effective immediately and shall survive the conclusion of the Action.

(Counsel) (Bar Number) (Firm Name) (Address) (City) (State) (Zip Code) (Phone) (Fax)

(Counsel) (Bar Number) (Firm Name) (Address) (City) (State) (Zip Code) (Phone) (Fax)

Dated:

Dated:

9–44

PROTECTING CONFIDENTIAL INFORMATION

EXHIBIT 9G—Sample Stipulated “Counsel Only” Protective Order STATE OF RHODE ISLAND KENT, SC ABC CORPORATION, Plaintiff VS. XYZ CORPORATION Defendant

} } } } } } } } } }

SUPERIOR COURT

C.A. No: (Insert)

STIPULATION AND ORDER GOVERNING PROTECTION AND USE OF CONFIDENTIAL MATERIAL WHEREAS, the interests of the companies to the above-captioned action (the “Litigation”), and the proprietary activities in which they are engaged, would be jeopardized if non-public technical, product development, marketing, strategic, planning, financial, and other confidential, competitively sensitive information and/or documents were to be disclosed publicly; NOW, THEREFORE, subject to the approval of the Court, pursuant to Rule ____________ Plaintiff, ______________, and Defendant, _____________ (collectively, the “Parties”) stipulate and agree that the following provisions shall govern the production and/or use of documents, deposition testimony, deposition exhibits, responses to interrogatories, requests for admission, and all other information and material (collectively “Discovery Material”) produced or disclosed by a Producing Party (as defined below) in connection with this Litigation. General Provisions 1. This Stipulated Protective Order (“Order”) shall govern the handling of all RESTRICTED MATERIALS in the above-captioned matter. 2. For purposes of this Order, RESTRICTED MATERIALS shall comprise all materials, including documents, deposition transcripts, and written discovery responses, which have been designated by a producing party as: (a) “CONFIDENTIAL” in accordance with paragraphs 5–10 of this Order; or (b) “ATTORNEYS’ EYES ONLY” in accordance with paragraphs 11–16 of this Order.

9–45

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

3. For purposes of this Order, a “Producing Party” shall mean any party to this litigation who produces or discloses information or materials pursuant to a discovery request in this litigation. The term “Producing Party” shall also include any non-party witness who produces or discloses confidential or proprietary information pursuant to a discovery request in this litigation and who indicates that it wishes to afford itself of the protections of this Order by executing the certificate attached as Exhibit A hereto. The term “Receiving Party” shall mean any person to whom information or materials are produced or disclosed in this litigation. 4. Each person who receives RESTRICTED MATERIALS from a Producing Party pursuant to this Order shall use the RESTRICTED MATERIALS solely for purposes of preparing for and conducting the Litigation, and shall not use the RESTRICTED MATERIALS for any other purpose whatsoever (including, without limitation, any business or commercial purpose or other litigation). No person who receives RESTRICTED MATERIALS from a Producing Party pursuant to this Order shall disclose the RESTRICTED MATERIALS to any other person except as authorized by the express terms of this Order. Confidential Information 5. For purposes of this Order, “CONFIDENTIAL INFORMATION” shall refer to documents, written discovery responses, deposition testimony, electronic media and all other materials produced to a party during this litigation which have been designated as “CONFIDENTIAL” in the manner set forth herein. Any copies, summaries or analyses of materials designated as “CONFIDENTIAL” shall also be treated as CONFIDENTIAL INFORMATION. 6. A Producing Party may designate a document or written discovery response as “CONFIDENTIAL” either: (a) by marking each page of the document, or the portions of the document which are believed to warrant confidentiality protection, with the word “CONFIDENTIAL” at the time the document is produced; and/or (b) by giving written notice to counsel for the receiving party within thirty (30) days after production that the document should be considered “CONFIDENTIAL.” In the event that a document is designated “CONFIDENTIAL” after its initial production, in accordance with the provisions of Paragraph 6(b), the Producing Party shall also provide a new copy of the document, marked with the word “CONFIDENTIAL,” and the receiving party shall return or destroy the unmarked document that was initially produced, along with any codes or duplicates thereof. 7. A Producing Party may explicitly designate all or part of a deposition transcript as CONFIDENTIAL INFORMATION either: (a) by stating on the record at the deposition that all or part of such testimony is “CONFIDENTIAL;” 9–46

PROTECTING CONFIDENTIAL INFORMATION

and/or (b) by giving written notice to each other counsel present at the deposition within thirty (30) days after receipt of the deposition transcript of the parts of the testimony that should be considered “CONFIDENTIAL.” In either of the foregoing instances, the stenographer shall be instructed to place the word “CONFIDENTIAL” on the first page and all portions of the original and all copies of the transcript containing any CONFIDENTIAL INFORMATION. Unless otherwise arranged in advance, or stated on the record during the deposition, the Parties shall treat all deposition testimony as CONFIDENTIAL INFORMATION until thirty (30) days after receipt of the deposition transcript, in order to give the Producing Party an opportunity to designate the portions of the material that should be considered “CONFIDENTIAL,” pursuant to Paragraph 7(b), above. In addition, unless otherwise arranged in advance by the Parties, attendance at any deposition shall be limited to those persons entitled to receive “CONFIDENTIAL” material, pursuant to this Order. 8. A Producing Party shall not designate information, documents, or testimony as CONFIDENTIAL INFORMATION unless the party’s counsel believes in good faith that the designated material contains non-public, confidential, proprietary or commercially sensitive information that requires the protections set forth in this Order. 9. Access to CONFIDENTIAL INFORMATION shall be strictly limited to: (a) the Court, including any appellate court, and Court personnel engaged in assisting the Court in its adjudicative functions; (b) stenographic reporters or video operators; (c) each party’s counsel, and the paralegal, secretarial and other employees of the counsel’s firm who are assisting in the prosecution of this litigation; (d) outside photocopying or document management services; (e) each party’s duly elected and/or appointed corporate officers and in-house counsel; (f) present and former employees of each party who are actively engaged in assisting and/or advising outside counsel regarding the conduct of this litigation, or who have been noticed to appear in this Litigation as deposition or trial witnesses; (g) third-party deponents, during the course of, and to the extent necessary to prepare for, their depositions in this Litigation; (h) experts and other consultants who have been retained by a party’s counsel to assist in the valuation, prosecution, or defense of this action; (i) the authors and recipients of a document, if named therein; and (j) any person to whom the Producing Party agrees may be shown CONFIDENTIAL INFORMATION. Notwithstanding the above, nothing herein shall prevent any Producing Party from publicly disclosing its own CONFIDENTIAL INFORMATION as it deems appropriate. 10. All persons to whom disclosure is contemplated under paragraphs 9(f), 9(g), 9(h) and 9(i) shall be informed of the terms of this Order prior to receiving CONFIDENTIAL INFORMATION, and shall agree to be bound by the terms

9–47

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

and conditions of this Order by signing a certificate in the form attached hereto as Exhibit A. Attorneys’ Eyes Only 11. For purposes of this Order, “ATTORNEYS’ EYES ONLY” shall refer to documents, written discovery responses, deposition testimony, electronic media, and all other materials produced to a party during the discovery in this litigation which contains extremely confidential and proprietary information, and which a Producing Party has designated as “ATTORNEYS’ EYES ONLY” in the manner set forth herein. Any copies, summaries or analyses of material designated “ATTORNEYS’ EYES ONLY” shall also be treated as if designated “ATTORNEYS’ EYES ONLY.” 12. A Producing Party may designate a document or written discovery response as “ATTORNEYS’ EYES ONLY” either: (a) by marking each page of the document, or the portions of the document to be designated ATTORNEYS’ EYES ONLY, with the words “ATTORNEYS’ EYES ONLY” at the time the document is produced; or (b) by giving written notice to counsel for the receiving party within ten (10) days after production that the document should be considered ATTORNEYS’ EYES ONLY. In the event that a document is designated ATTORNEYS’ EYES ONLY after its initial production, in accordance with the provisions of Paragraph 12(b), the Producing Party shall also provide a new copy of the document, marked with the words ATTORNEYS’ EYES ONLY, and the receiving party shall return or destroy the unmarked document that was initially produced, along with any copies or duplicates thereof. 13. A Producing Party may designate all or part of a deposition transcript as ATTORNEYS’ EYES ONLY either: (a) by stating on the record at the deposition that all or part of such testimony is “ATTORNEYS’ EYES ONLY;” or (b) by giving written notice to each other counsel present at the deposition within thirty (30) days after receipt of the deposition transcript of the parts of the testimony that should be considered “ATTORNEYS’ EYES ONLY.” In either of the foregoing instances, the stenographer shall be instructed to place the words, “ATTORNEYS’ EYES ONLY” on the first page and all portions of the original and all copies of the transcript containing “ATTORNEYS’ EYES ONLY” information. If a Party states, on the record, that all or part of particular testimony is “ATTORNEY’S EYES ONLY,” pursuant to Paragraph 13(a), above, then attendance at the deposition, or the portion of the deposition so designated, shall be limited to those persons who are entitled to receive “ATTORNEY’S EYES ONLY” material under this Order. 14. A Producing Party shall not designate information, documents, or testimony as “ATTORNEYS’ EYES ONLY” unless the party’s counsel believes in 9–48

PROTECTING CONFIDENTIAL INFORMATION

good faith that the designated material contains extremely confidential or sensitive proprietary information that requires the protections set forth in this Order. 15. Except upon further order of the Court or express written consent of the counsel for the Producing Party, disclosure of documents and information designated ATTORNEYS’ EYES ONLY, and any information contained therein, shall be restricted to: (a) the authors or recipients of the document, if named therein; (b) counsel who are representing parties in this litigation, and the paralegal, secretarial and other employees of the counsel’s firm who are assisting in the prosecution of this litigation, provided, however, that such counsel shall have no involvement in determining the technical substance or content of any patents or patent applications related to wireless, hand-held terminals for use in the restaurant and hospitality industry; and (c) persons identified in paragraphs 9(a), 9(b), 9(h) and 9(i) of this Order. In addition, notwithstanding the above restrictions, material designated ATTORNEYS’ EYES ONLY may be used by any party to this litigation in deposing any current or former director, officer, or employee of the Producing Party. 16. If disclosure of material designated ATTORNEYS’ EYES ONLY is made available under paragraph 15(c) to experts or other consultants who have been retained by a party’s counsel to assist in the valuation, prosecution, or defense of this action, those persons shall be informed of the terms of this Order prior to receiving the material designated ATTORNEYS’ EYES ONLY, and shall agree to be bound by the terms and conditions of this Order by signing a certificate in the form attached hereto as Exhibit A. Additional Provisions 17. Unless otherwise agreed by the Producing Party or ordered by the Court, all information which a Producing Party designates as RESTRICTED MATERIALS may be filed with the Court only after 10 days notice to the other parties such that they may motion the Court for a protective order directing that the materials shall be filed under seal. In the event that the Court, after hearing, determines that the RESTRICTED MATERIALS shall be filed under seal, all parties will file such MATERIALS only in accordance with the findings and procedures established by the Court. 18. Within sixty (60) days after the termination of this action, including any appeals, or at such other time as the parties agree, each party shall return all RESTRICTED MATERIALS to the Producing Party or destroy such materials and certify in writing to the Producing Party that they have been destroyed. Counsel may retain their work product, such as pleadings, correspondence, and memoranda, which contain or refer to RESTRICTED MATERIALS, provided

9–49

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

that all such RESTRICTED MATERIALS shall remain subject to this Order and shall not be disclosed to any person except as permitted by this Order. 19. This Order is entered without prejudice to the right of any party, including any Producing Party, to seek relief from the Court, upon good cause shown, from any of the restrictions provided in any of the preceding paragraphs hereof. This Court may make such further Orders and directions as it deems appropriate or necessary concerning the subject matter of this Order, including, without limitation, any orders modifying, extending, limiting or vacating any or all of the provisions contained herein. 20. Entering into this Order, producing and/or receiving CONFIDENTIAL or ATTORNEY’S EYES ONLY material, or otherwise complying with the terms of this Order, shall not (a) constitute an admission by any Party that any particular CONFIDENTIAL or ATTORNEY’S EYES ONLY material contains or reflects trade secrets or any other type of confidential information; (b) prejudice in any way the rights of any Party to object to the production of documents it considers not subject to discovery, or operate as an admission by any Party that the restrictions and procedures set forth herein constitute adequate protection for any particular information designated as CONFIDENTIAL or ATTORNEY’S EYES ONLY; or (c) prevent a Party from filing an appropriate motion requesting that the Court determine whether particular RESTRICTED MATERIAL has been properly designated by the Producing Party, or is subject to this Order. Should any Party wish to bring a motion pursuant to this Paragraph 20(c), that Party shall first request in writing that the Producing Party change its designation; and shall file its Motion only if the Producing Party refuses, within three (3) days thereafter, to assent to this request. On such a Motion, the Producing Party shall have the burden of proving that the RESTRICTED MATERIAL whose designation has been challenged by the receiving Party was, in fact, properly designated. 21. The inadvertent or mistaken disclosure of any RESTRICTED MATERIAL by a Producing Party, without the designation required under Paragraphs 6, 7, 12, 13, or 17, above, shall not constitute a waiver of any claim that the inadvertently disclosed material is entitled to protection under this Order, if such inadvertent or mistaken disclosure is brought to the attention of the receiving party within five days after the Producing Party’s discovery of such disclosure. Along with notice of inadvertent or mistaken disclosure, the Producing Party shall provide properly marked documents to each Party to whom RESTRICTED MATERIAL was inadvertently disclosed; and, upon receipt of these properly marked documents, the receiving party shall return to the Producing Party, or destroy, the improperly marked documents that were initially produced, along with any copies or duplicates thereof.

9–50

PROTECTING CONFIDENTIAL INFORMATION

22. Any person or other entity that joins or is joined in this Litigation as a Party shall have access to RESTRICTED MATERIALS, in accordance with the provisions of this Order, upon executing and filing with the Court a declaration in which the new Party and its counsel agree to be fully bound by the terms of this Order. 23. In the event that any RESTRICTED MATERIALS shall be demanded, from a receiving party, by means of (a) a subpoena in another legal action, or (b) a demand in another action in which the receiving party is a Party, the Party receiving the subpoena or demand shall promptly provide to the Producing Party (no later than forty-eight hours after receiving the subpoena, demand, or legal process) written notice and a copy of such subpoena, demand, or legal process. In addition, the receiving party shall timely object and decline to produce the RESTRICTED MATERIALS except as ordered by a court of competent jurisdiction. Should the party seeking access to the RESTRICTED MATERIALS take action against the receiving party to enforce the subpoena, demand or other legal process, the receiving party shall respond by advising said person, and the Court having jurisdiction over the subpoena, demand, or other legal process, of the existence of this Order. However, nothing contained herein shall be construed as requiring the receiving party to challenge or appeal any order of a court of competent jurisdiction requiring production of RESTRICTED MATERIALS, or to subject itself to penalties for non-compliance with such court order, or to seek relief from this Court. 24. A party may, subject to the Rules of Evidence, and further orders of the Court, use any RESTRICTED MATERIALS for any purpose at trial, or at any hearing before a judicial officer in this litigation, provided that reasonable notice is given to counsel for the party who produced the RESTRICTED MATERIAL, and provided further that such counsel may, at the time of such proposed use, and prior to the disclosure of the RESTRICTED MATERIAL, move for an appropriate protective order. 25. This Order may be amended by the agreement of counsel for the parties in the form of a written amendment signed by counsel, then filed with the Court for approval. Assented and agreed to this ______ day of __________, 200_.

ENTER:

PER ORDER:

(Judge’s Name)

(Clerk) 9–51

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Order Prepared and Submitted by:

(Counsel) (Bar Number) (Firm Name) (Address) (City) (State) (Zip Code) (Phone) (Fax)

CERTIFICATION I hereby certify that on this ___ day of ________, 200__, I caused a true copy of the within document to be mailed by regular mail, postage prepaid to the following counsel of record: (Opposing Counsel) (Firm Name) (Address) (City) (State) (Zip Code)

(Name) (Title)

9–52

CHAPTER 10

Interrogatories Peter J. Comerford § 10.1

Introduction ........................................................................ 10–1

§ 10.2

Interrogatory Procedure.................................................... 10–2 § 10.2.1

Who May Be Interrogated? ................................. 10–2

§ 10.2.2

Timing of Interrogatories .................................... 10–3

§ 10.2.3

Service of Interrogatories .................................... 10–3

§ 10.2.4

Form of Interrogatories ....................................... 10–3

§ 10.2.5

Number of Interrogatories................................... 10–4

§ 10.2.6

Form of Answers to Interrogatories .................... 10–5

§ 10.2.7

Deadlines for Answering..................................... 10–6

§ 10.2.8

Remedies for Failure to Properly Answer Interrogatories........................................ 10–7

§ 10.2.9

Super. R. Civ. P. 37 Motion to Compel and Motion for Sanctions .................................... 10–7

§ 10.2.10 Motions to Compel More Responsive Answers to Interrogatories ................................ 10–10 § 10.3

Interrogatory Strategy......................................................10–11 § 10.3.1

Timing ................................................................10–11

§ 10.3.2

Content .............................................................. 10–12 (a)

Identify the Party...................................... 10–13

(b)

Identify All Potential Fact Witnesses ....... 10–13

(c)

Identify the Location of All Relevant Documents ............................................... 10–14

10–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 10.4

Identify the Factual Bases of the Opposing Party’s Claims and Defenses .............................................10–14

(e)

Identify the Expert Witnesses a Party Intends to Call at Trial ..............................10–16

(f)

Quantify a Plaintiff’s Claims for Damages..............................................10–17

(g)

Identify the Existence of an Insurance Agreement.................................................10–17

Answers to Interrogatories...............................................10–18 § 10.4.1

§ 10.4.2

§ 10.5

(d)

Duty to Investigate .............................................10–18 (a)

Individual Parties ......................................10–18

(b)

Agents or Officers for a Corporation ........10–18

Objections ..........................................................10–19 (a)

Objections Based on Super. R. Civ. P. 26 ...................................................10–20

(b)

Privileged Information ..............................10–21

§ 10.4.3

Answers to Expert Interrogatories .....................10–23

§ 10.4.4

Option to Produce Business Records .................10–24

§ 10.4.5

Duty to Supplement Answers to Interrogatories................................................10–26

Use of Answers at Trial .....................................................10–27

EXHIBIT 10A—Plaintiffs’ Motion to Compel Defendant’s Answers to Interrogatories and Request for Production .............10–29 EXHIBIT 10B—Conditional Order ..............................................10–31 EXHIBIT 10C—Plaintiff’s Interrogatories Propounded to Defendant.....................................................................................10–33 EXHIBIT 10D—Defendant’s Interrogatories Propounded to Plaintiff ........................................................................................10–39

10–ii

CHAPTER 10

Interrogatories Peter J. Comerford

Scope Note This chapter discusses a series of issues relating to interrogatories. It begins with a discussion of procedural issues, addressing the timing and form of interrogatories as well as remedies for inadequate answers. The chapter then discusses interrogatory strategy, including coordination of discovery activities and detailed advice on drafting. It concludes with a detailed discussion of interrogatory answers, addressing the duty to investigate, the drafting of objections, and answers to expert interrogatories. Among the exhibits included with the chapter are two sets of sample interrogatories.

§ 10.1

INTRODUCTION

Interrogatories are powerful tools to learn the strengths and weaknesses of your adversary’s case; to pin your opponent down regarding his or her contentions; to identify areas for future discovery, e.g., identifying documents to request; to delineate (and limit) the evidence you may face at trial; to prepare for the prosecution or defense of dispositive motions; and to obtain ammunition for impeachment or other interrogation at deposition or trial. Interrogatories are often, though not always, the first tool used in the course of discovery in a given case. Practice Note When opposing counsel sits with his or her client to answer your interrogatories, that session will (if your questions are well crafted) be an occasion for a careful review by counsel and the client of that client’s “story.” It is, therefore, sometimes wise to do a deposition before propounding interrogatories, in order to question that person before he or she “gets his or her story straight.”

“Interrogatories” are written questions propounded to a party designed to get information that will be useful in the prosecution or defense of a suit. The responding

10–1

§ 10.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

party must sign answers to interrogatories under oath (or affirmation), so the signed answers are the equivalent of sworn testimony. The rules governing the use of interrogatories are almost wholly contained in Rules 26, 33, and 37 of the Rhode Island Superior Court Rules of Civil Procedure (the District Court Rules of Civil Procedure track those of the Superior Court in pertinent part. Reference herein will be made to the Superior Court rules, with the pertinent differences noted where relevant. The Family Court version of Rule 33 is identical to the District Court version.) These rules provide for • the individuals who may be interrogated, • the timing of interrogatories, • the scope of information discoverable through interrogatories, • the remedies for failure to properly answer interrogatories, and • the use of interrogatories at trial. Practice Note It is worth remembering that, pursuant to Super. R. Civ. P. 81(b), even though appeals from the District Court to the Superior Court are heard de novo, one may not propound additional discovery in the Superior Court in the absence of leave of court upon a showing that lack of discovery will result in injustice or undue hardship. However, discovery responses obtained in the District Court may be used in the Superior Court to the same extent as if such discovery had taken place there.

As with other discovery tools, the scope of interrogatories is defined by Super. R. Civ. P. 26. Parties may use interrogatories to discover any nonprivileged information that is reasonably calculated to lead to the discovery of admissible evidence. Super. R. Civ. P. 26(b).

§ 10.2

INTERROGATORY PROCEDURE

§ 10.2.1 Who May Be Interrogated? Any party may serve interrogatories on any other party. In cases involving public or private corporations, any officer or agent of the corporation may furnish the information available to the corporation. Super. R. Civ. P. 33(a). (The District

10–2

INTERROGATORIES

§ 10.2

Court rule is restricted to adverse parties. Thus, in the Rhode Island District Court, a defendant could not pose interrogatories to a codefendant in the absence of a cross-claim, since they are not adverse.) Unlike a request for production of documents or a deposition, interrogatories may not be propounded to nonparties.

§ 10.2.2 Timing of Interrogatories Interrogatories may be served on the plaintiff at any time after the commencement of the action. A defendant may not be served with interrogatories, without leave of court, until at least sixty days after service of the summons and complaint on that party. Super. R. Civ. P. 33(a). (In the District Court and Family Court, the time is twenty days. Dist. Civ. R.P. 33(a).)

§ 10.2.3 Service of Interrogatories The rules governing the service of interrogatories are the same as those governing the service of any pleadings and other papers under Super. R. Civ. P. 5. Interrogatories must be served on a party or that party’s attorney according to the procedures outlined in Super. R. Civ. P. 5(b). Service by mail is deemed complete upon mailing. Super. R. Civ. P. 5(b). If there is written consent, service may be made by electronic means. Super. R. Civ. P. 5(b)(2)(D). This can be particularly helpful, given that (as is explained in § 10.2.6, Form of Answers to Interrogatories, below) the answers must set out, in connection with each, the question being answered. Thus, an e-mailed word processing document allows the responding counsel the ability to readily “cut and paste” the questions and answers. Under Super. R. Civ. P. 5(d), interrogatories and answers to interrogatories are not filed with the court. (While the cognate provision of the District Court rules suggests that discovery responses are filed with the court, they in fact are not, pursuant to administrative order. Similarly, in Family Court the answers are not filed with the court.)

§ 10.2.4 Form of Interrogatories The only guidance offered by Super. R. Civ. P. 33(a) as to the form of interrogatories is that they be numbered consecutively. In all other respects, the form of the interrogatories should follow the rules that apply to all pleadings and other papers subject to the Rhode Island Superior Court Rules of Civil Procedure, particularly Rules 7(b), 10, and the relevant case law, e.g., pleadings must be in English rather than Latin. Williamson v. Gen. Fin. Corp., 210 A.2d 61 (R.I. 1965).

10–3

§ 10.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Often, interrogatories are drafted with extensive prefatory materials, such as definitions and instructions. There is no explicit authority in the rules allowing the use of this technique. Done right, it can be helpful in making clear the intentions of the interrogating party, and can streamline the drafting of the questions themselves. For instance, in a real estate dispute, one might define “the premises” to mean the real estate and improvements thereon located at a particular address, thereby avoiding the need to spell it out in each of the questions about that house. Like any other tool, it is subject to abuse, and may serve to increase (by implication) the number of questions beyond the prescribed limit of thirty. Moreover, it is hard to see how a party, by the use of definitions and instructions, could place a greater burden on the responding party than is called for by the rules.

§ 10.2.5 Number of Interrogatories Rule 33(b) of the Rhode Island Superior Court Rules of Civil Procedure provides, in pertinent part, that “A party may serve more than one set of interrogatories upon another party provided the total number of interrogatories shall not exceed 30 unless the court otherwise orders for good cause shown.” Often, an interrogatory will be set out in “subparts,” dissecting various aspects of the information sought in that question. For instance, a standard contract interrogatory asks: If the Plaintiff entered into any agreement with the Defendant, furnish: a) The dates of said agreements; b) Whether the agreements were oral or in writing; c) What were the encompassing terms and provisions of the agreements; d) With whom and by whom the said agreement was specifically entered into. Do the separate paragraphs each constitute a separate interrogatory as against the limit of thirty? Contrast that question with the one that follows it in that particular set: If any oral agreements were entered into between Plaintiff and Defendant, please state the date of any such agreements, the substance of said agreements, the name and address of the individuals between whom said oral agreements were made on behalf of Plaintiff and Defendant and the names and addresses of any witnesses thereto. 10–4

INTERROGATORIES

§ 10.2

Clearly, the latter form requests at least as many aspects of the answer sought as does the former. At some point we descend into sophistry in trying to distinguish between the two to decide, in essence, which question is oppressive, in that it is a ruse for putting several questions under the rubric of a single interrogatory. Both versions would likely qualify as embodying a single question. Fittingly, the resolution of this issue is entrusted to the sound discretion of the motion justice. There is little case law on this subject; the few cases that have been decided suggest that the court may deem the subparts in the first example to be separate interrogatories for purposes of the thirty-interrogatory limit. In Eleazar v. Ted Reed Thermal, 576 A.2d 1217 (R.I. 1990), Justice Shea quoted from Professor Kent’s Rhode Island Practice: Subsidiary questions, arranged as part of a purported single question, each constitute a separate question for purposes of this rule, and the bar has been alerted that the court looks with disfavor upon attempts to disguise the number of questions by inclusion of multiple questions in a single numbered question. Eleazar v. Ted Reed Thermal, 576 A.2d at 1220 (citing Francis v. Barber Auto Sales, Inc., 454 A.2d 703, 704–05 (R.I. 1983)). Practice Note If you are not sure whether the subparts to your interrogatory fit this definition, try to restructure the interrogatory without breaking it into subparts. This may help avoid any possible objections based on the thirty-interrogatory limit. As a practical matter, the court avoids an overly mechanical approach, and looks to whether the set of interrogatories as a whole is oppressive, particularly when viewed in light of the complexity of the case at hand. If in doubt, consider filing a motion for leave of court to propound additional interrogatories or seeking a stipulation from the respondent agreeing to the higher number. Super. R. Civ. P. 33(a).

§ 10.2.6 Form of Answers to Interrogatories Interrogatories must be answered separately in writing under oath. Super. R. Civ. P. 33(a). As a practical matter, this means the answers must be notarized. It is accepted practice for the answering party to execute one signature line at the end of the document containing the answers rather than signing after each individual answer. In addition, the party’s attorney must sign the objections to the 10–5

§ 10.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

party’s answers. Again, rather than signing each objection, the attorney usually signs at the end of the document, below the party’s signature, referencing all objections. The responses must set out each question being answered, immediately followed by the answer being given. This makes reviewing the answers much easier than was the case under prior practice (which did not require setting out the questions), as the questions and answers can be viewed together instead of flipping back and forth between two documents.

§ 10.2.7 Deadlines for Answering Rule 33 provides explicit deadlines for the filing of answers to interrogatories. Answers to interrogatories are due forty days after the service of the interrogatories as defined in Super. R. Civ. P. 5 (not forty days after a party receives them). It is common practice among attorneys to enter stipulations extending the time to respond to interrogatories. This is, in fact, encouraged, as a way of avoiding unnecessary motion practice. Unlike the Federal Rules of Civil Procedure, the Rhode Island rules impose no requirement to obtain court approval before the parties enter into an agreement to modify discovery procedures in this fashion. There is no need for an order to enter to effectuate this agreement. One should be aware, though (as will be discussed in more detail below), that as a general proposition, objections to questions that are not interposed within forty days of service of the interrogatories are deemed waived. Super. R. Civ. P. 33(a). Therefore, one ought to include language in the stipulation explicitly preserving the right to object to particular questions. With a trusted adversary, the language “answer or otherwise respond to” includes by implication that one’s response might well be an objection. That method should also help avoid frivolous objections. On many occasions, one is tempted to object to a particular question as unduly burdensome, only to find out from the client that the answer is “none” and the burden of so stating is nil. A stipulation that allows one to prescind from objecting until one inquires as to the facts will help both sides. Alternatively, it is accepted practice to file objections in a separate pleading, long before the answers themselves have been prepared, simply to avoid the issue of waiver. Usually a telephone inquiry will confirm that the objections are being asserted prophylactically, and the recipient should wait to see the answers before filing a motion, since these objections are often withdrawn once counsel has undertaken the necessary inquiry.

10–6

INTERROGATORIES

§ 10.2

§ 10.2.8 Remedies for Failure to Properly Answer Interrogatories Rule 37 outlines a detailed procedure for the interrogating party to follow in the event that • the answering party fails to serve answers to interrogatories; • the interrogating party obtains an order compelling further answers from the answering party; or • the answering party, having been ordered to give further responses, fails to do so.

§ 10.2.9 Super. R. Civ. P. 37 Motion to Compel and Motion for Sanctions If the answering party fails to file answers or obtain an extension of time within forty days of service of the interrogatories, the interrogating party may move to compel such answers under Super. R. Civ. P. 37. See Exhibit 10A for a sample motion to compel. The motion is scheduled for hearing as a nondispositive motion, and must be accompanied by a certification that the parties have conferred in good faith to resolve the dispute. Often, this process of conferring will result in an agreed-upon order. Practice Note In Providence County Superior Court, nondispositive motions are heard every Wednesday and Thursday. In Kent County, all motions are heard on the second and fourth Mondays of each month, except the last Monday in December. Washington County motion days are the third Monday, except July and December. In Newport County, motion day is the first Monday of each month. Super. R. Prac. 2.5.

As noted above, objections not timely raised are deemed waived. The careful practitioner concerned about this issue will seek an order that specifically reserves the right to object to specific interrogatories. (Practitioners should do this even though the custom historically has been to consider it implicit that one could still interpose a substantially justified objection even after a motion to compel was granted. One thought that what was being compelled was a response, even if the response was that the adversary was not entitled to the requested information.) The motion to compel will be granted by rule of court pursuant to Super. R. Civ. P. 7(b)(3) if no objection is timely filed. For this reason, the motion must set forth the length of time within which the moving party 10–7

§ 10.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

is seeking compliance, which will then result in an order of that length, e.g., thirty days. The clerk will make a docket entry that the motion is granted by rule of court if no objection is timely filed. However, prudence dictates that a written order be prepared despite this notation, since documentation of the existence of such an order may be needed if no responses are forthcoming after the time set forth in the order has elapsed and a motion for sanctions must be filed. Just as importantly, errors in docketing may create confusion as to whether or not your motion is deemed by the court to be granted by operation of law, i.e., rule-of-court. If the answering party fails to file answers or obtain an extension of time within the time provided in the order granting the motion to compel, the remedy is, broadly speaking, a motion for sanctions under Super. R. Civ. P. 37. The typical sanction is a conditional order of dismissal or default on liability. In other words, the order will provide that the complaint is dismissed, or the defendant defaulted, but the dismissal or default may be deemed vacated if compliance is forthcoming within the specified period, such as thirty days. The orders will typically provide that the dismissal or default shall not become final in the absence of a further motion, on proper notice, and a hearing thereon. See Exhibit 10B for a sample conditional order. The Rhode Island Supreme Court has explicitly held that discovery orders are not self-executing, i.e., an affirmative decision of the court after review of the record, rather than the ministerial act of the clerk, is required to obtain the appropriate judgment or order upon noncompliance. Thompson v. Thompson, 554 A.2d 1041 (R.I. 1989). Moreover, the justices assigned to the motion calendar have virtually universally issued administrative orders specifying the format for such orders, and requiring that they not be self-executing. If the answering party fails to comply with a conditional order of dismissal, the remedy under Rule 37 is to file a motion for entry of final judgment of dismissal, whereupon the court will exercise its discretion in light of the circumstances of the case. If the order that was not complied with was an order of conditional default, one must follow up with a hearing on damages after moving for and obtaining a final order of default. Generally, questions of damages will be heard on the trial calendar after which final judgment will enter. Or, if agreed to by the Formal and Special Cause Calendar justice, on that calendar as an oral proof of claim held in conjunction with motion for entry of final judgment filed pursuant to Rule 58. (The circumstances under which damages hearings will be resolved on one or the other of those two calendars is beyond the scope of the present topic. Suffice it to say that in an answered case, the defendant is still entitled to a jury trial on damages even if finally defaulted on liability. In addition, the Formal and Special Cause Calendar is a busy calendar and the justice in charge of that calendar may not have the time to hear a complex damages claim even if jury waived.) 10–8

INTERROGATORIES

§ 10.2

It is important to note that, as a practical matter, courts take a far different approach with final dismissals than with conditional orders. The granting of a conditional order in the face of clear noncompliance will usually be viewed by the court as a reasonable sanction. The granting of final dismissal or default, over an objection, is the occasion for careful scrutiny by the court. The court typically looks at the entire history of the case to see whether there is an ongoing pattern of efforts to avoid, delay, or thwart discovery requests. The Supreme Court cases that uphold the imposition of such ultimate sanctions rely on finding a sustained pattern of abuse rather than a single failure. For instance, in Senn v. Surgidev Corp., 641 A.2d 1311 (R.I. 1994), the court noted that the imposition of sanctions is reviewed on an abuse of discretion standard, and it reviewed at some length the opinions issued up to that date upholding the imposition of “the ultimate sanction” of default or dismissal with prejudice. In that case, the Supreme Court agreed with the trial justice’s findings concerning the impropriety of the defendant’s response to the discovery requests. However, the Supreme Court reversed the trial justice’s order of default and award of attorney fees because of the absence of a pattern of persistent refusal, defiance, or bad faith, thus providing the defendant with an additional opportunity to comply with the discovery requests. Importantly, the Supreme Court then went on to require the defendant to comply with the discovery requests in a manner consistent with the trial justice’s previous orders and pointed out that the defendant risked being subject to sanctions if it did not respond within sixty days of the Supreme Court’s opinion. Senn v. Surgidev Corp., 641 A.2d at 1319. Finally, there are alternative sanctions that the court will often consider instead of dismissal or default, depending on the equities of a particular case or the nature of the relief sought. For instance, if a complaint is seeking injunctive or declaratory relief, the court may be reluctant to determine the merits of the controversy, through a default, based on a discovery dispute. In those instances, the court may issue an order precluding the assertion of certain claims or defenses in the absence of answering interrogatories about them. Practice Note Many lawyers attempt to fulfill the requirement of conferring in good faith by sending a boilerplate “good faith” letter indicating that the discovery is outstanding and that the time for compliance has elapsed, and concluding that a motion to compel will be filed if no answers are received within, for example, ten days. However, some judges consider that such perfunctory efforts are not truly undertaken “in good faith.” Therefore, a phone call to explore in depth how the concerns of each side could be satisfied is recommended. Just as importantly, Rhode Island has long prided itself on having a collegial bar. While there are sometimes issues about which attorneys

10–9

§ 10.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

will differ in good faith and about which one needs the intervention of the court, most issues should be susceptible to agreement between the parties. Even the mere failure to provide timely answers is, in a more perfect world, better met with a phone call asking if one’s opponent needs more time. There is such a thing as litigation karma, and a sage practitioner acts mindfully of that.

§ 10.2.10 Motions to Compel More Responsive Answers to Interrogatories If answers are incomplete and unresponsive or if the answering party’s objections are inappropriate, the interrogating party should file a motion to compel more responsive answers or to overrule objections. Super. R. Civ. P. 37(a). The motion should set forth the following: • the interrogatories and answers to interrogatories as exhibits; and • an analysis of each interrogatory (referenced by number), showing each response or objection and explaining why the answer is unresponsive or insufficient, or that the objection is inappropriate or waived. This motion is then set down for hearing and argued. As noted above, one should seek to reach agreement on such a motion. A busy motion calendar justice will likely not be pleased to review, one by one, a list of, for example, fourteen disputed interrogatory answers. Your colleagues, waiting their turns, will not enjoy hearing them either. The regular practitioners on this calendar in fact develop a shorthand, honed after hearing the same disputes argued over and over in front of the same judge. The interrogatory asks, for instance, for a description of all medical treatment ever received by the ninety-year-old plaintiff. His attorney objects that this is overly broad and unduly burdensome. The young associates sent to the calendar by each side then go into the hall. The plaintiff’s side says: “How about three years back for the same body part?” The defense says, “No, five years, and including any disabling condition.” The response: “Deal. Can I have sixty days?” “Forty-five.” “Deal.” By that method, they can winnow down to the one or two answers really in dispute and argue those. If the forthcoming answers in response to such an order are not truly more responsive or still evade the issue, the next step is a motion for Super. R. Civ. P. 37 sanctions as described above.

10–10

INTERROGATORIES

§ 10.3

§ 10.3

INTERROGATORY STRATEGY

§ 10.3.1 Timing As discussed below, the plaintiff may serve interrogatories as early as sixty days after the time the complaint and summons are served, and sooner if leave of court is granted. However, because the total number of interrogatories is limited to thirty, each interrogatory is important, and parties should have a grasp of the basic issues in the case before preparing them. While standard interrogatories are helpful (and the author’s firm often updates its own regarding relatively routine car accidents or premises liability cases), care should be given to review such questions to assure their applicability in a given case. In a complex or unusual case, one needs to craft a set of questions that will disgorge the needed information pertinent to that matter. Construction accidents, for instance, have their own peculiarities in terms of OSHA requirements as well as regarding the relationships among subcontractors and general contractors, all of which needs to be explored in discovery. Where the plaintiff has filed a notice complaint, it is often not readily apparent what issues may be most important. In many cases, interrogatories are the best or only way to obtain the initial information necessary to “flesh out” the facts. In the exercise of prudence, the discovering party may choose to file an initial set of fewer than thirty interrogatories, reserving the remainder for later in the case. If there are multiple parties on the other side, as for instance a vehicle owner and the vehicle’s driver, one may often divide the questions between the two, thereby reserving some for later sets, or hold off on interrogating one of the two entirely, and wait to see if another set becomes necessary. Most often it is apparent from the type of case what kinds of questions need to be answered even if the details of the case are unknown at the time the case begins. For example, in a products liability case, attorneys will almost always need answers to questions regarding subjects such as • the identity of the product in question, • the alleged defect in the manufacture of the product, • the facts supporting an alleged breach of warranty, and • expert witnesses. In a personal injury case, attorneys will always need to know, among other things, • the nature of the injury; 10–11

§ 10.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• the cause of the injury; • where the injury occurred; • the identities of any witnesses; • the extent of available insurance coverage, including excess and umbrella policies; • the alleged long-term effects of any disability; and • the identity of any experts and the substance of their expected testimony. In all types of cases, one will want to know the identity of persons having knowledge of the facts in the case. It is important to file interrogatories as soon as possible in order to begin “fleshing out” a case and establishing the factual allegations that form the basis of the complaint or defense. However, as noted above, it is often wise to “save” some interrogatories for use at a later stage when the facts of the case are more apparent.

§ 10.3.2 Content It is important to choose terminology that is broad and inclusive enough to get you the desired information regardless of semantic disputes, while at the same time focused enough to avoid seeming like a mere fishing expedition. In some respects, all good discovery is a fishing expedition, but courts, and skillful advocacy, require that you only drop your net where you have reason to think the fish are swimming. Compare this thinking with the Rhode Island Supreme Court’s ruling in Tilden-Thurber v. Farnell, 43 R.I. 42 (1920), in which the court denied a petition for a writ of mandamus, by which the petitioner hoped to conduct the deposition of a party to a lawsuit. After noting that the proper method was a bill of discovery (which would only be granted on proof that discovery was absolutely necessary), the court said the following: If the application shows that it is merely an attempt to “fish for evidence,” or to “draw the fire” of the opposite party, for the purpose of either making a case, or of “cooking up” a defense; or to state it negatively, if it does not show that the applicant is fairly entitled to the evidence sought, in order to enable him to properly prepare and try his case, it should be denied.

10–12

INTERROGATORIES

§ 10.3

You should carefully consider the elements that you will need to prove to establish the causes of action alleged in your complaint or what elements your opponent must prove, and aim questions at those areas. The following are approaches to interrogatories that will likely be useful regardless of factual allegations or the theory of relief in a particular case.

(a)

Identify the Party

In cases involving individual parties, an interrogatory should be used, where appropriate, to identify the name, address, marital status, date of birth, and other important information regarding the party: Interrogatory No. 1: Please identify yourself, stating your full name, date of birth, residential address, occupation, business address, and, if married, the name of your spouse, the date of your marriage, and your maiden name or any other names by which you have been known. Practice Note In cases involving corporate parties, it is useful to ask for information regarding the identity and authority of the agent or officer signing the interrogatories on the corporation’s behalf. Interrogatory answers are subject to being stricken in the event that the person signing them is neither an officer of the corporate party nor authorized to speak on its behalf. Providence Gas Co. v. Biltmore Hotel Operating Co., 376 A.2d 334 (R.I. 1977). One should also inquire as to who, other than attorneys, helped the agent provide the answers and what documents were used to assist in the process. It should also be noted that a question that asks for a Social Security number is almost universally met with the response that that information is privileged. See, e.g., 5 U.S.C. § 552a.

(b)

Identify All Potential Fact Witnesses

Regardless of the case, interrogatories should be used to identify all potential witnesses with knowledge of discoverable facts. Typically, an interrogatory should ask the identity of each individual with personal knowledge of relevant information and each such person’s address, place of employment, and occupation:

10–13

§ 10.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Interrogatory No. 1: Please list the full names and complete addresses of the following, including where applicable, that person’s relationship to you: a. all persons known or believed by you to have witnessed any occurrence, event, fact, or circumstance on which any of the allegations of the complaint are based, specifying which occurrence, event, fact, or circumstance each such person witnessed; b. all persons known or believed by you to possess knowledge of any occurrence, event, fact, or circumstance relating to the allegations of the Complaint or the defenses asserted thereto, specifying which occurrence, event, fact, or circumstance of which each such person has knowledge.

(c)

Identify the Location of All Relevant Documents

It is important to determine the location and custodian of all documents relevant to any type of case. For example, in a personal injury case, a typical interrogatory will request the location of all medical treatment records. In a contract case, a typical interrogatory will request the location of all documents related to the negotiation, consummation, or performance of the contract. For example, an interrogatory regarding a contract claim might ask the following: Interrogatory No. 10. Please identify each document, book and record you now have or which you had at a previous time in your possession regarding any transaction referred to in the complaint and state the name and address of the present custodian of each such document.

(d)

Identify the Factual Bases of the Opposing Party’s Claims and Defenses

This is usually the first opportunity to get a party’s “story” under oath. Every set of interrogatories should contain one or more interrogatories requesting the factual bases of the complaint, counterclaim, affirmative defenses, and the opposing party’s version of events. The answer to these interrogatories can be used later to cross-examine the party at a deposition or, in some cases, where permitted by the rules of evidence, as evidence at trial. Examples of simple interrogatory questions include the following: 10–14

INTERROGATORIES

§ 10.3

Interrogatory No. 3. Please state, in detail, all facts upon which you rely in asserting the claims contained in your complaint. or, Interrogatory No. 3. Please state, all facts upon which you rely in support of your affirmative defenses, setting forth the factual basis for each separately and with particularity. Counsel may also propound “contention-based” interrogatories. For example: Interrogatory No. 18. If you contend that a third party was legally responsible for the accident, please identify the party and state all of the facts upon which you base your contention. Opposing counsel will sometimes object to contention-based interrogatories on the ground that they call for a legal conclusion or that they seek to shift the burden of proof. Such objections lack a firm basis, since Super. R. Civ. P. 33(b) makes clear that a question may call for an opinion or contention that relates to fact or the application of law to fact. The Committee Notes to the 1995 amendment to this Rule specifically so state, noting “The rule is based on the premise that discovery of opinions or contentions relating to fact or the application of law to fact is conducive to narrowing the issues between the parties and thus to obtaining settlement.” Answering a contention interrogatory requires a good deal of care, particularly if the complaint alleges complicated theories of recovery. Bear in mind that your client can be confronted with his or her answer at a deposition or trial. The answer is that client’s sworn testimony, so it must be understandable by the client. Clearly, the defendant is entitled to an answer setting forth the factual bases for these contentions, yet you need to protect attorney-client privilege and craft an answer that the client will be able to explain if asked. Some variation of “My understanding is that . . . ” is probably as good a way as any of approaching this issue. (Of course, much will depend on the savvy and sophistication of your client.) Here is an example: Answer to Interrogatory No. 18. According to my understanding, a presumption of negligence arises whenever there is a rear-end collision. Mary Smith was driving behind me at the time of the collision. 10–15

§ 10.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

She failed to stop in time, swerved at the last minute, and her vehicle struck the left rear bumper of my vehicle, which was stopped at the time. The impact of the collision forced my vehicle into the side of Plaintiff’s vehicle which was next to mine. I contend that it was Mary Smith who was negligent, not me. Another challenge in this regard is that one almost always lacks complete information about the facts of a case at the time the case is filed. It is only through discovery that one uncovers the “smoking guns” that can prove crucial in the success of a claim or defense. For that reason, it is often prudent to specifically note in the interrogatory answer that discovery is ongoing and the party reserves the right to supplement the answer at a later date depending on what is revealed in the course of litigation.

(e)

Identify the Expert Witnesses a Party Intends to Call at Trial

Interrogatories are the initial method under the Rhode Island Superior Court Rules of Civil Procedure to discover the identity of a party’s expert witnesses, their opinions, the bases of their opinions before trial, and an overview of their expected trial testimony. Super. R. Civ. P. 26(b)(4)(A)(i). Therefore, in cases involving expert testimony, it is vital to include an interrogatory such as the following addressing these issues: Interrogatory No. 1: Please identify each person you expect to call as an expert witness at the trial of this case, by stating: a.

his or her full name, business address, complete educational background, and employment background;

b.

the subject matter on which each expert is expected to testify;

c.

the substance of all facts and opinions to which each expert is expected to testify; and

d.

the grounds for each opinion listed in your answer to the preceding subpart.

Under Crowe Countryside v. Novare Engineers, 891 A.2d 838 (R.I. 2006), the Rhode Island Supreme Court has allowed discovery of materials, including 10–16

INTERROGATORIES

§ 10.3

correspondence, from counsel to an expert retained for trial as long as nothing is provided that reveals the attorney’s theories or thought processes. Thus, questions should be crafted to limn the extent of such materials. Conversely, discovery regarding experts that have been consulted but not retained to testify is rarely available, and only upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject matter by other means. Super. R. Civ. P. 26(b)(4)(B).

(f)

Quantify a Plaintiff’s Claims for Damages

Interrogatories also help identify the monetary value of a party’s damages, especially in cases involving property damage, property appraisals, present value calculations, lost profit claims, lost wages claims, and medical expenses, to name a few. The following are some examples: Interrogatory No. 1: Please itemize in specific detail the nature and amount of each item of damages you are seeking to recover in this action and identify all documents that support your claim for damages. Interrogatory No. 2: Please describe the method used to calculate each element of the damages itemized in response to Interrogatory No. 1.

(g)

Identify the Existence of an Insurance Agreement

Interrogatories are the easiest way—at least prior to depositions—to find out whether a party is covered by insurance. As stated in Super. R. Civ. P. 26(b)(2), a party may obtain discovery of “the existence and contents of any insurance agreement” that may serve to indemnify or reimburse a party for any payments made to satisfy a judgment in the litigation. The fact of the existence of the insurance agreement may well not be admissible as evidence at trial, however. Super. R. Civ. P. 26(b)(2). One should specifically request information about excess or umbrella policies, as the existence or lack thereof will have a bearing on making a policy limits demand under Asermely v. Allstate Insurance Co., 728 A.2d 461 (R.I. 1999). These are merely some of the areas that should be explored in almost all interrogatories regardless of the type of case and the parties involved. See Exhibits 10C and 10D for examples of interrogatories in a motor vehicle case and a contract case. 10–17

§ 10.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 10.4

ANSWERS TO INTERROGATORIES

§ 10.4.1 Duty to Investigate (a)

Individual Parties

A party has the duty to answer interrogatories fully and truthfully. See Super. R. Civ. P. 33(a) (“Each interrogatory shall be answered separately and fully in writing under oath.”). However, the Rhode Island Supreme Court has avoided imposing a general duty to investigate in order to answer interrogatories. Hodge v. Osteopathic Gen. Hosp., 249 A.2d 81 (R.I. 1969). One is required to go beyond one’s personal knowledge to include information readily available. Hodge v. Osteopathic Gen. Hosp., 249 A.2d at 87. (In that case, the plaintiff was required to ascertain the dates and charges of his doctor’s visits regarding his personal injury claim.) In other words, if an interrogatory asks, for instance, the width of the street where the accident occurred, there is no obligation to go to the street and measure it, but there is an obligation to gather such information as is already either in the party’s possession or more easily obtained by the answering party than the interrogating party. Of course, as noted above, a party will investigate in the course of litigation through the use of various discovery methods and may need to supplement answers accordingly.

(b)

Agents or Officers for a Corporation

A corporation, partnership, or association may designate an officer or agent to answer interrogatories, who “shall furnish such information as is available to the party.” Super. R. Civ. P. 33(a). While there is no Rhode Island authority on point, the language of the Rule calling for such information “as is available to the party,” i.e., the entity, clearly implies that the officer or agent answering for the entity is under a duty to make a reasonable inquiry of all employees, agents, and servants as will enable the party to answer fully and truthfully. The absence of a general duty to broadly investigate would naturally apply to entities as well. See Hodge v. Osteopathic Gen. Hosp., 249 A.2d 81 (R.I. 1969). In fact, the Rhode Island Supreme Court has held that there is no duty to investigate at all before objecting to a blatantly improper request. D’Amario v. State, 686 A.2d 82 (R.I. 1996). Practice Note To avoid complex privilege issues, avoid using in-house counsel to sign on behalf of corporations. In addition, consider using different corporate officers or agents to sign with respect to different interrogatories,

10–18

INTERROGATORIES

§ 10.4

for example, Mr. A as to answers 1, 3, 5, and 7, Ms. X as to all other answers.

§ 10.4.2 Objections It is not necessary to file a motion for protective order in order to refuse to answer objectionable interrogatories. A party need only serve an answer that states the grounds of the specific objection to the interrogatory. The opposing party must file a motion to compel more responsive answers in order to get a ruling on the propriety of the objection. Regardless of whether an interrogatory is objectionable, the answering party must file a response, stating its objections as appropriate. As discussed above, one must also be mindful of the timeliness of objections, as they can be waived through inattention. One may file objections separately, before the answers themselves are filed, since a perusal of the questions will often be sufficient to determine if they are objectionable. Some practitioners will object to a given interrogatory and then go on to provide a response after dutifully asserting that the answer is provided “without waiving said objection.” This is an improper method of answering. While it is clearly proper to object to parts of a question and answer the unobjectionable parts, you cannot have it both ways. The “point” of an objection of the improper sort is often to forestall the duty to supplement, discussed below, while appearing to have given an answer, since the duty to supplement or update does not apply to interrogatories to which an objection has been interposed. Super. R. Civ. P. 33(a). This practice is properly derided, at some length, in a footnote to the Superior Court’s written decision in Langley v. Providence College, No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (available online at http://www.courts.state.ri.us/superior/pdf/05-5702.pdf), noting as follows: Regretfully, it has become a common ploy for attorneys practicing before the Rhode Island Superior Court to provide an incomplete answer to an interrogatory question by means of asserting the information is being produced “notwithstanding objection” and thus obscuring, if not completely hiding, the discoverable facts and information to which the objection does not legitimately pertain. The result is worse than no response at all. When there is no response to an interrogatory question or where a bona fide objection is 10–19

§ 10.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

interposed, but with it, the non-objectionable information is identified as such and represented to be produced in full, the party serving the interrogatory at least knows the extent to which it has not received an answer. Where an incomplete answer “notwithstanding objection” is given, the party serving the interrogatory is unable to determine the extent to which it has received the answer and, further, those who are unacquainted with the tactic are lulled into believing they have received an answer. This tactic of answering “notwithstanding” objection has, at least in the Rhode Island Superior Court, helped to give motion practice a life of its own, spawning countless motions and objections and a seemingly endless waste of time and resources. Moreover, the “answer without waiving” technique may run afoul of the doctrine of judicial estoppel set forth in Gaumond v. Trinity Repertory Co., 909 A.2d 512 (R.I. 2006), which held that voluntarily producing and relying on a revised version of a report estops the party producing it from claiming privilege from preventing disclosure of the full report. The Rhode Island Supreme Court has upheld the imposition of sanctions, in the form of attorney fees, to punish the repeated assertion of blanket objections to discovery requests, many of which were clearly proper requests and recognized to be such by the firm interposing the objections. Limoges v. Eats Rest., 621 A.2d 188 (R.I. 1993).

(a)

Objections Based on Super. R. Civ. P. 26

An interrogatory is objectionable if it requests information that is outside the scope of Super. R. Civ. P. 26. Some examples of such objections are the following: • overbroad—the interrogatory requests some information that is relevant to the litigation but also extends into irrelevant areas; • irrelevant—the interrogatory is irrelevant to any issue in the litigation; • unduly burdensome—the sheer amount of information requested is beyond what a party should reasonably be expected to gather;

10–20

INTERROGATORIES

§ 10.4

• unlimited in scope or time—an interrogating party should make some reasonable effort to limit the scope of an interrogatory to a time period and area relevant to the litigation; and • not reasonably calculated to lead to the discovery of admissible evidence—this is similar, if not identical to, an objection based on irrelevance. Practice Note These objections should be used as rarely as possible and should not be used as a way to avoid discovery. Such a tactic is both fruitless and dangerous. The limits of discovery are open to the discretion of the trial judge, and the judge’s discretion regarding the proper scope of discovery is rarely overturned. It is unwise to object to many or all of a party’s interrogatories on the grounds that they exceed Super. R. Civ. P. 26 only to have the trial judge issue a court order requiring the party to answer the interrogatory in a limited time frame. It is better practice to make all reasonable efforts to answer a party’s interrogatories when they are first propounded, objecting only to the extent that the interrogatories seek information beyond the scope of discovery.

Ethics Commentary Lawyers may not make “a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” R. Prof. C. 3.4(d).

(b)

Privileged Information

Any interrogatory requesting information regarding privileged communications is objectionable and need not be answered. (Such a privilege does not prevent discovery of the underlying facts contained in the privileged communication. The facts are not immunized by their communication to a doctor, lawyer, or priest. Upjohn Co. v. United States, 449 U.S. 383 (1981).); Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (quoting Gaumond v. Trinity Repertory Co., 909 A.2d 512, 516 (R.I. 2006) (quoting Moretti v. Lowe, 592 A.2d 855, 857 (R.I. 1991) and Consolidation Coal Co. v. Bucyris-Erie Co., 432 N.E.2d 250, 258 (Ill. 1982)). This includes information subject to

10–21

§ 10.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• attorney-client privilege, • spousal disqualification, • peer-review privilege, • clerical privilege, and • any other privilege recognized under Rhode Island statutory and common law. The answering party may also object on the ground that the interrogatory seeks information protected by the work product doctrine. Under the Rhode Island Superior Court Rules of Civil Procedure, the work product of a party’s attorney and other representatives of a party (including investigators and claim agents) receives qualified protection. Parties showing that they have a “substantial need” and are “unable without undue hardship to obtain the substantial equivalent of the materials by other means” may be entitled to disclosure of materials that would otherwise be protected as work product. Super. R. Civ. P. 26(b)(3). In ordering such disclosure, however, the court must “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Super. R. Civ. P. 26(b)(3). In other words, work product that sets forth the opinions or theories of counsel is absolutely privileged and is never to be disclosed. For instance, the identity of persons who are knowledgeable regarding the matters at issue is clearly discoverable; the identity of those counsel intends to have testify at trial is privileged. Annotation, “Pretrial Discovery—Witnesses—Identity,” 19 A.L.R.3d 1114 (1968). (As one reaches the eve of trial, or where there is a scheduling order in place, one may well have to indicate which of the identified witnesses will in fact be called in order to avoid surprise or concealment. Narragansett Elec. Co. v. Carbone, 898 A.2d 87, 95 (R.I. 2006) (cited in Donilon v. City of Providence, 2009 R.I. Super. LEXIS 86 (Gibney, J.)).) A party asserting such a privilege must present a privilege log that “shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” Super. R. Civ. P. 26(b)(5). Practice Note Certain specialized rules govern answers to interrogatories that involve expert witnesses. These rules are discussed below.

10–22

INTERROGATORIES

§ 10.4

Sometimes these privileges are deemed waived by the filing of a lawsuit involving the privileged matters. For instance, attorney-client privilege can be waived by filing a lawsuit in which the privileged matters are integrally involved in the resolution of the claim. Mortgage Guarantee v. Cunha, 745 A.2d 156 (R.I. 2000). The physician-patient privilege is waived by the filing of a medical negligence action against one’s physician, or otherwise placing one’s medical condition at issue (such as by filing a personal injury action). Lewis v. Roderick, M.D., 617 A.2d 119 (R.I. 1992). Such waivers are not unlimited. The health care privilege, which is codified statutorily, allows disclosure pursuant to formal discovery (but not ex parte contact by opposing counsel) of information that is relevant to the action. R.I. Gen. Laws § 5-37.3-4(b)(8)(ii). (This statute was amended precisely to prohibit the ex parte contacts that were permitted in Lewis v. Roderick, M.D., but Lewis remains good law on the issue of waiver.) In other words, a plaintiff claiming to have injured his lower back does not give up the privilege protecting records of treatment to his colon twenty years earlier. There are special rules regarding discovery of surveillance materials. Surveillance photographs are typically subject to a qualified privilege as materials prepared in anticipation of litigation. Courts are concerned, however, that a potentially untruthful plaintiff can tailor his or her testimony to explain away the photos if they are produced during discovery. The Rhode Island Supreme Court ruled, in Cabral v. Arruda, 556 A.2d 47 (R.I. 1989), that the existence of surveillance photographs is discoverable, and thus a proper subject for an interrogatory. Cabral v. Arruda, 556 A.2d at 50. The photographs themselves can be held back pending a deposition of the party surveilled (typically, the plaintiff), and even then only such photos as will be introduced at trial need be produced. (This is one area where the court allows discovery, albeit limited, that discloses attorney thought processes regarding what the trial evidence would be. See § 10.4.2, above.)

§ 10.4.3 Answers to Expert Interrogatories Rule 26 of the Rhode Island Superior Court Rules of Civil Procedure defines the scope of discovery that may be had of a party’s expert witnesses before trial. As discussed above, interrogatories are the initial way to obtain expert discovery. If the initial response is inadequate, further discovery may be had after application to the court. In medical negligence cases, for instance, experts are routinely deposed, pursuant to scheduling orders crafted in each case. Given the importance of experts in almost all areas of litigation, parties must carefully observe the rules regarding expert disclosure in order to prevent any chance that the expert will be precluded from testifying at trial. A proper answer to an expert interrogatory typically includes the following four elements: 10–23

§ 10.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• the identity of the expert, • the subject matter of the anticipated testimony, • the substance of the facts and opinions that will make up the anticipated testimony, and • a summary of the grounds for the expert’s opinions. There is no set form that an answer need follow as long as it includes these four elements. The answer may refer to an attached report from the expert, or it may set forth the information in the body of the answer. The goal of the Rule is to provide the opposing party with disclosure of the expert testimony in advance of trial. Practice Note Answers to expert interrogatories should be supplemented as soon as possible to avoid any potential objections on the basis of untimely notice, and no later than thirty days before trial. The answers should also be as comprehensive as possible, to avoid potential preclusion of portions of the expert’s opinion that were not included in the interrogatory answer. As noted above, in complex cases, the extent and sequence of discovery, including expert discovery, is often governed by a scheduling order arrived at in a conference with the motion calendar justice or the trial justice.

§ 10.4.4 Option to Produce Business Records Rule 33(d) of the Rhode Island Superior Court Rules of Civil Procedure provides a means for an answering party to refer the interrogating party to documents in lieu of drafting a conventional answer. (N.B. This option only exists, at least explicitly, in the Superior Court. There is no subparagraph d in the District or Family Court versions of Rule 33.) This option is available only if the following conditions are met: • the documents in question must be business records, • the answering party must specify the documents, • the answering party must state in its answer that the information sought is contained in the specified documents, and • the burden for extracting the information would be substantially the same for both parties.

10–24

INTERROGATORIES

§ 10.4

In cases where the answer to an interrogatory is just as easily found by reviewing a set of business records, it is permissible to identify the documents and provide the documents to the interrogating party, as long as the documents are sufficiently described and delineated in the answer itself and on the face of the documents to know what corresponds with what. Merely dropping off a box and saying, “Good luck, it’s all in there” is grossly inadequate. The Rhode Island Supreme Court, in Senn v. Surgidev Corp., 641 A.2d 1311 (R.I. 1994), examined such a situation at length. That case involved injuries alleged to have been caused by the implantation of a lens that was defective, resulting in loss of vision in one eye. In response to a series of interrogatories about the testing and regulatory approval of the lens, counsel for Surgidev obtained seven large boxes of documents and made them available to plaintiff’s counsel, representing that all the information needed to respond to the interrogatories was contained in those boxes. Senn’s lawyer contended that this response was inadequate. There followed a long process of motion practice, which resulted in a series of orders and some refinement of the identification of the documents. The end result, however, was that neither plaintiff’s counsel nor the motion calendar justice were satisfied with the response. Final default was entered against the defendant, and a counsel fee was assessed as a penalty for the noncompliance. The court reviewed at length the kinds of bad faith dilatory conduct that had, in prior cases, supported the imposition of the most draconian sanctions. They found no such bad faith in the case before them, and therefore vacated the trial court’s order of default. However, the Court went on to approve the trial justice’s orders concerning production of the documents and answering interrogatories, ordering the defendant to comply within sixty days. The court offered the following description of an acceptable practice: We think it advisable to provide some direction for the discovery process in this case on remand. The motion justice ordered that Surgidev provide more responsive answers to Senn’s interrogatories and respond to Senn’s request for production of documents and the lens as directed in the 1991 order granting Senn’s motion for entry of conditional default. She also specified that Surgidev was permitted to produce documents in order to provide more responsive answers to interrogatories as long as it (1) identified which documents were intended to answer a particular interrogatory and (2) arranged and collated or otherwise categorized any documents so that Senn’s counsel could ascertain which documents correspond with which interrogatory response. She further ordered that Surgidev supplement the answers to specific 10–25

§ 10.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

interrogatories in writing to the extent that the answers could not be extrapolated from the documents produced. We approve of the terms of this order and are persuaded that Surgidev must take further steps in order to comply fully with it. Specifically, for example, we think that in order to respond to interrogatory No. 6 in a complete manner, Surgidev must list all the documents described in the interrogatory and state the name and address of the person who made each listed record. Surgidev may choose to create a chart or find some other way in which to enumerate those documents in the form of a list. Given the apparent volume of documents involved in this matter, we acknowledge that this is a highly unenviable task. However, if Surgidev does not achieve full compliance with the trial justice’s order entered April 30, 1992, within sixty days of the date of this opinion, sanctions may be appropriate. Senn v. Surgidev Corp., 641 A.2d at 1320–21.

§ 10.4.5 Duty to Supplement Answers to Interrogatories Under Super. R. Civ. P. 26(e), a party is under a duty to supplement answers to interrogatories with regard to: • the identity and location of persons having knowledge of discoverable matters; • the identity of expert witnesses to be used at trial, the subject matter on which they can be expected to testify, and the substance of their testimony; • information obtained that causes the party to know that the original response was incorrect; and • information that renders the original answer incomplete or untrue and where failure to supplement constitutes a knowing concealment. Super. R. Civ. P. 26(e). Such supplementation must occur at least thirty days before trial. Super. R. Civ. P. 33(c). A witness not made known in that fashion may be excluded. Owens v. Silvia, 838 A.2d 881 (R.I. 2003). However, a witness 10–26

INTERROGATORIES

§ 10.4

known to the other side and deposed by them may be allowed to testify, despite the failure to update. Castellucci v. Battista, 847 A.2d 243 (R.I. 2004.) The “continuing duty to answer” set forth in Super. R. Civ. P. 33(c) is more stringent than the duty to supplement in Rule 26(e). The Rule 33 duty provides that “If a party furnishing answers shall subsequently obtain information which renders such answers incomplete or incorrect, amended answers shall be served within a reasonable time thereafter but not later than 30 days prior to the day fixed for trial.” The Committee notes to the 1995 rule revisions specifically recognize that this duty, applicable only to interrogatories, is “somewhat more stringent” than the general duty to supplement in Rule 26. If an answer becomes in any way incomplete or incorrect because of new information, it must be updated. This is where the technique of objecting yet purporting to answer is shown to be pernicious, since the objection ostensibly forestalls the duty to supplement. One should also be careful regarding answers where your party specifically reserved the right to supplement. (See § 10.3.2(d), above.) Such an answer may keep a dispositive motion at bay, but ought to be supplemented to include and rely on the facts you have learned in the course of discovery.

§ 10.5

USE OF ANSWERS AT TRIAL

The use of answers to interrogatories at trial is governed by Super. R. Civ. P. 33(b), which says that the answers may be used to the extent permitted by the rules of evidence. See, e.g., Halpert v. Rosenthal, 267 A.2d 730 (R.I. 1970). (However, beware that these older cases routinely say that interrogatory answers can be used “to the same extent as a deposition under Rule 26(d).” To confuse matters, in 1995, Superior Court Rule 26(d) became Rule 32(a), and Rule 33(b) was amended, clarifying the use at trial. The District Court version of Rule 33 still says that answers can be used to the same extent as provided in Rule 26(d) for a deposition.) An answer to an interrogatory is a statement by a party-opponent given under oath, and can be used by a cross-examiner as a prior inconsistent statement or an admission. In some ways, answers to interrogatories are more effective than deposition testimony in that they are not subject to the rule of completeness that would govern the proffer of deposition testimony as set forth in Super. R. Civ. P. 32(a)(5). If a party uses answers to interrogatories in cross-examination, there is no parallel rule that authorizes the answering party to introduce another portion of the answers to place the answer in context.

10–27

§ 10.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Answers to interrogatories may also be used to good effect in support of, or opposition to, motions for summary judgment. See, e.g., Winston v. Coleman, Inc., 712 A.2d 360 (R.I. 1998). Answers to interrogatories may also be used as evidence in the interrogating party’s case-in-chief, if they are otherwise admissible. Thomas v. Amway, 488 A.2d 716 (R.I. 1985). Bear in mind that an answer may be excluded on relevance or competence grounds. In Peters v. Jim Walter Door Sales, 525 A.2d 46 (R.I. 1987), the Rhode Island Supreme Court ruled that the trial court properly excluded a manual regarding the subject overhead door, which manual had been appended to, and incorporated in, answers to interrogatories, where the manual postdated the incident in question, as that subsequent knowledge was not relevant to the case at bar. Generally speaking, the answers themselves are not admitted as exhibits (though they may be marked for identification). Instead, similar to the use of depositions, questions and answers are read into evidence but not actually given to the jury. Answers to interrogatories, unlike pleadings, do not serve to automatically narrow the issues involved in the litigation in the way that a bill of particulars did under prior practice. See, e.g., Union Mortgage Co. v. Rocheleau, 51 R.I. 345 (1931). However, undisclosed facts or contentions can be excluded if they were not revealed in response to a proper interrogatory. Neri v. Nationwide, 719 A.2d 1150 (R.I. 1998). Moreover, a party attempting to introduce a theory or contention in contravention of an interrogatory answer would certainly be subject to cross-examination on that attempt. Finally, the court might well entertain a properly framed motion in limine seeking to exclude or strike contentions or theories that were explicitly (or even implicitly, by omission) abandoned in an interrogatory answer.

10–28

INTERROGATORIES

EXHIBIT 10A—Plaintiffs’ Motion to Compel Defendant’s Answers to Interrogatories and Request for Production STATE OF RHODE ISLAND PROVIDENCE, SC Plaintiff A and Plaintiff B VS. Defendant X

} } } } } } } } }

SUPERIOR COURT

C.A. No: 09-XXXX

PLAINTIFFS’ MOTION TO COMPEL DEFENDANT’S ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION Now comes the Plaintiffs, A and B, in the above-entitled matter and hereby moves this Honorable Court for an order compelling Defendant, X, to answer interrogatories which were previously propounded to them on August 28, 20XX. Pursuant to Rule 37(a)(2) of the Rhode Island Rules of Civil Procedure, before filing this motion, I have, in good faith conferred, or attempted to confer, with counsel for the Defendant in order to resolve the pending discovery issue raised by this Motion. Plaintiffs hereby request a thirty (30) day order. Plaintiffs, By their Attorneys, COIA & LEPORE, LTD. Peter J. Comerford, Esquire (#XXXX)

10–29

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

NOTICE OF HEARING Please be advised that the above-captioned motion shall be called for hearing before the Honorable Justice of this Court on April 1, 20XX at 9:30 a.m. If no objection having been filed or notice thereof given to opposing counsel, said motion shall be granted by rule of court, pursuant to R.I. R. Civ. P. 7(b)(3)(vii). Peter J. Comerford, Esq.

CERTIFICATION I do hereby certify that I mailed a true and correct copy of the foregoing Motion by regular mail, postage prepaid this ____ day of March, 20XX to: Other Lawyer, Esquire Any Avenue East Providence, RI 02914

10–30

INTERROGATORIES

EXHIBIT 10B—Conditional Order STATE OF RHODE ISLAND PROVIDENCE, SC

SUPERIOR COURT

[CAPTION] CONDITIONAL ORDER This matter came on for hearing before Mr. Justice ___________ on the ____ day of April, 20XX, on Plaintiff’s Motion to Dismiss for Defendant’s failure to comply with a previous Order of this Court compelling Defendant to answer interrogatories on or before ________________. After hearing thereon/by agreement of the parties, it is hereby ORDERED: 1.

The Plaintiff’s Motion is granted.

2.

Said dismissal/default may be deemed vacated if Defendant shall comply with the previous Order of this Court by furnishing answers to interrogatories/etc. within ___ days of the hearing, that is, on or before _________________.

3.

If Defendant shall fail to provide responses to Plaintiff’s discovery requests on or before _______________, this order of dismissal/default may become final upon further motion and hearing thereon.

ENTER:

PER ORDER:

10–31

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

10–32

INTERROGATORIES

EXHIBIT 10C—Plaintiff’s Interrogatories Propounded to Defendant STATE OF RHODE ISLAND PROVIDENCE, SC

SUPERIOR COURT [caption]

PLAINTIFF’S INTERROGATORIES PROPOUNDED TO DEFENDANT The following Interrogatories are propounded to each defendant, pursuant to Rule 33 and are to be answered under oath. These interrogatories shall be deemed to be continuing up to the time of the trial so as to require supplemental answers if additional information or additional facts become available. 1.

Please state your full name and other names by which you have been known; your age; your residence; your driver’s license number; marital status; business and business address.

2.

Please describe from your own knowledge and as precisely and fully as possible the way in which the accident described in the Complaint occurred, as well as where you were coming from and where you were going.

3.

Please set forth fully and completely the home address and business address of the registered owner and operator of the vehicle in which defendant was operating at the time of the collision.

4.

Please describe the weather, road and visibility conditions at the time of the accident.

5.

Please state the following:

6.

a.

The speed, direction, position and location of each vehicle involved in the accident in question during its approach to the point of impact.

b.

The speed of each vehicle and the distance between said vehicles at the moment you first observed the other vehicle involved in this accident.

Please state: a.

The movement of each vehicle from the time you first observed the other vehicle until the time of impact, stating any changes in speed, position or direction. 10–33

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

b.

The speed, direction, position and location of each vehicle involved in the accident in question at the time of the impact.

7.

Please specify the direction, position and location from the point of impact of each vehicle involved in the accident in question after each vehicle came to a rest following the impact.

8.

Please describe what, if anything, you did in an attempt to avoid the accident in question, including any warning or signal given by you prior to the impact.

9.

State whether or not the brakes of the vehicle you were operating were applied prior to the collision. If you stated the brakes were applied, state the following: a.

Your best judgment of the speed in miles per hour that you were traveling at the moment you first applied the brakes;

b.

Whether the brakes slowed down your speed;

c.

Your best judgment of your speed in miles per hour upon impact with the Plaintiff’s vehicle.

10. If you claim that you applied the brakes of the vehicle you were operating, state the approximate distance in feet with reference to the time when you first applied your brakes: a.

Between the motor vehicle you were operating and the point of the accident;

b.

Between the motor vehicle you were operating and the vehicle with which you collided;

c.

Between the vehicle with which you collided and the point of the accident.

11. If there were any obstructions to your view at or near the scene of the accident, please describe each such obstruction in detail, its location and the extent to which it or they interfered with your view. 12. Were any traffic lights, signals or other traffic controls in existence at the site of the accident? If so, please indicate the type of control, the location, and whether or not you observed said traffic control.

10–34

INTERROGATORIES

13. Please state the name, year and model of your motor vehicle with the approximate mileage at the time of said accident, together with the detailed statement of the parts of your motor vehicle which were damaged and the cost of repairing the same; and, please state the value of said motor vehicle immediately before and immediately after said accident. 14. Please state the substance of all conversations you had or overheard immediately after the accident but at the scene with the other party, the police or any other person, giving the name and address of these persons with whom you did have or overheard such conversations. 15. Please state the name and address of each witness who may have any knowledge concerning the accident in question who is known to you, your attorney or any person acting in your behalf: and, if any such witness is related to you by blood or marriage or was known by you prior to the accident, please specify the witness and relationship. 16. If it is known to you, your attorney, or any person acting in your behalf, that any statements or reports or recordings were obtained from any persons concerning the alleged occurrence and damages, please identify each by giving the date and the names and addresses of the persons who gave and took each and who has present custody of each such statement, report or recording. 17. If any such statement, report or recording referred to in Interrogatory No. 16 above and identified by your answer thereto have been reduced to writing, please identify such written record giving the date or dates thereof and the name and address of each person having present custody of any such written records. 18. Do you, your attorney, agents, servants or employees have any letters, statements, accident report forms, investigative reports, voice recordings concerning the incident in question, the Plaintiff or any other person; and if so, the nature of same, the date each was taken, and the name, address and occupation of the person taking same, and the name and address of the person, firm or corporation presently having possession of same. 19. Do you, your attorney, agents, servants or employees have any letters, statement, accident report forms, investigative reports, or voice recordings concerning the accident made by the Plaintiff or any other person; and, if so, the nature of same, the date each was taken and the name, address and occupation of the person taking same, and the name and address of the person, firm or corporation presently having possession of the same.

10–35

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

20. Please state the name and address of every person whom you intend to call as an expert witness at the trial of this matter, the substance of any opinion the expert will offer, and the facts that form the basis of each such opinion. 21. Please set forth whether photographs were taken of the Plaintiff, the Defendant, the vehicles, the scene of the accident or other items which are material or relevant, including any diagrams or surveys and, if so, please identify each, giving the dates of taking, by whom, and the name and address of the person who has possession of them. 22. Did you consume any alcoholic beverages, narcotics or medicines during the eight (8) hours prior to the accident? If so, please state the kind of alcoholic beverage, narcotic or medicine; the place or places it was consumed and when it was consumed with the relation to the time of the accident. 23. Please state whether or not you have pleaded nolo contendere or guilty to or been convicted of any criminal offense or violation of the motor vehicle laws, indicating the date of such plea or conviction; the court; the city and state; the nature of the offense; and, the disposition of the court. 24. Please set forth in detail all facts upon which you rely as tending to show negligence of any kind on the part of the Plaintiff involved in the accident which caused or contributed to the accident. 25. Please state whether or not you have commenced an action against any other person or persons in connection with this incident; and, if so, please state the name or names of the parties sued; and the court said action or actions are pending. 26. With reference to each denial pleaded by you in Answer to Plaintiff’s Complaint, please set forth for each such denial the following: a.

All facts known to you, your attorney, insurance carrier or anyone acting in your behalf that you contend support or corroborate said denial;

b.

The name, business and residence address of each such person known or believed by you to have any knowledge of any facts set forth in your answer to the foregoing sub-part.

27. With reference to each affirmative defense pleaded by you in your Answer to Plaintiff’s Complaint, please set forth for each said affirmative defense the following:

10–36

INTERROGATORIES

a.

All facts known to you, your attorney, insurance carrier or any one acting in your behalf that you contend support or corroborate each affirmative defense.

b.

The name, business and residence address of each such person known to you, your attorney, insurance carrier or anyone acting in your behalf who you believe has knowledge of any facts set forth in your answer to sub-part (a) of this interrogatory.

28. Please state whether, at the time of the accident or immediately prior thereto, you were using a cell phone, car radio, CD player, or other similar electronic device. 29. Please state whether, at the time of the accident or immediately prior thereto, you were eating or drinking anything and, if so, what. 30. Please state whether or not you and/or the owner of the vehicle that you were driving had in full force and effect at the time of the accident in question any automobile insurance covering the incident. If so, please state the name and address of the insurance carrier and the limits of said insurance policy as well as any umbrella or excess policies.

10–37

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

10–38

INTERROGATORIES

EXHIBIT 10D—Defendant’s Interrogatories Propounded to Plaintiff [caption] DEFENDANT’S INTERROGATORIES PROPOUNDED TO PLAINTIFF The following Interrogatories are propounded to Plaintiff, pursuant to Rule 33 of the Rhode Island Rules of Civil Procedure and are to be answered under oath. These interrogatories shall be deemed to be continuing up to the time of the trial so as to require supplemental answers if additional information or additional facts become available. 1.

Please state your full name, age, residence address, marital status, occupation, business address, and your authority for providing answers to these interrogatories.

2.

Please identify all persons consulted by you in the preparation of the answers to these interrogatories.

3.

Please identify all documents reviewed by you in the preparation of the answers to these interrogatories.

4.

If it is alleged that the parties entered into any agreement with each other, furnish: (a) the dates of said agreements; (b) whether the agreements were oral or in writing; (c) what were the encompassing terms and provisions of the agreements; (d) with whom and by whom the said agreement was specifically entered into.

5.

If it is alleged that any oral agreements were entered into between the parties, please state the date of any such agreements, the substance of said agreements, the name and address of the individuals between whom said oral agreements were made on behalf of defendant and co-defendant and the names and addresses of any witnesses thereto.

10–39

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

6.

If any agreement referred to in the foregoing interrogatory was in writing, furnish an exact description of each and every written document that forms a part of said alleged agreement.

7.

With reference to any agreement allegedly entered into, please state when and where said agreement was entered into, and the names and addresses of all parties who were present at the time of the making of said agreement, and if any part of said agreement was oral, what words were expressed by whom and to whom, which you allege comprise the contents of any such agreement.

8.

State whether or not the Plaintiff has received from any person any reports or communications of any nature in connection with this proceeding, and if so, the person who presently has possession of such reports or communications, the subject matter of each such report or communication, the date of same, and the names and addresses of the parties between whom said communications took place.

9.

Please state the date, time, place, substance, and parties to any conversation, either in person or by telephone between the parties or persons acting on your behalf of either with reference to the subject matter involved in the instant lawsuit.

10. As to all notices, correspondence, and communications, between any of the parties to this action, relating to the transactions that form the subject matter of this lawsuit, state as each: (a) The person to whom is given; (b) The address to which mailed; (c) The manner to which notice was given that if by registered mail, certified mailed, or by service by a disinterested person. 11. Prior to the date of the agreement entered into between the parties, did the defendant or the defendant’s representatives have any discussions or negotiations with the plaintiff or any of her representatives concerning the terms of the contract? If so, for each such discussion, furnish: (a) the date; (b) the place; (c) the name and address of each person;

10–40

INTERROGATORIES

(d) the matter discussed; (e) whether any decisions or agreements were reached, and if so, state the substance of each such decision and agreement; (f) and if so you will do so without a motion to produce, please provide copies of any and all memoranda, document, and/or writings of any nature in connection with the aforesaid discussions or negotiations. 12. State the name, residence address and business address of each witness known by you, or your attorney, or any person acting in your behalf having any knowledge concerning the allegations complained of in the plaintiff’s complaint. 13. Please identify each document, book and record you now have which you had at a previous time in your possession regarding any transaction referred to in the complaint and state the name and address of the present custodian of each such document. 14. State the names, telephone numbers, and addresses of all individuals known or believed by you to have any knowledge covering the facts pertaining to the complaint herein and which of those persons have given you, your attorney, or any person, firm or corporation acting in your behalf, statements, voice recordings, reports or memoranda in any concerning this claim, and if any, date of each such statement, claim reports, voice recordings, or reports or memoranda and the name, telephone number and address of the person, firm or corporation who now has possession of them. 15. Please set forth all facts known to you tending to show that the Plaintiff is authorized and/or licensed to do business in the State of Rhode Island. 16. Set forth the amount alleged to be owed to it by the Defendant, the method by which the Plaintiff calculated that amount, and identify all documents relied upon by you or anyone acting on your behalf to calculate that amount. 17. State whether you contend that the Defendant made any admissions in respect to the claims alleged in the complaint, and if so, furnish: a)

the person making the admission;

b) the person receiving the admission; c)

any document or oral communication relating to such admission in any way, and;

10–41

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

d) the substance of each such admission. 18. Does the Plaintiff intend to rely on any declaration against interest made by the Defendant, and if so furnish: a)

the person making the alleged declaration against interest;

b) the person who received the alleged declaration against interest; c)

any document or oral communication relating to such declaration in any way;

d) the substance of each declaration. 19. Please state the name and address of every person whom you intend to call as an expert witness at the trial of this matter, the substance of any opinion the expert will offer, and the facts that form the basis of each such opinion, and identify any correspondence or other documents presented to the said expert to assist in forming such opinion.

10–42

CHAPTER 11

Requests for Documents and Things and for Entry Upon Land Stanley F. Pupecki § 11.1

Introduction .........................................................................11–1

§ 11.2

Drafting and Serving Document Production Requests ...............................................................................11–2 § 11.2.1

§ 11.3

Targets for Document Requests ...........................11–2 (a)

Parties..........................................................11–2

(b)

Private Nonparties .......................................11–3

(c)

Public Nonparties........................................11–5

§ 11.2.2

When to Serve Requests.......................................11–5

§ 11.2.3

Extensions and Discovery Deadlines ...................11–7

§ 11.2.4

Number of Requests Allowed ..............................11–8

§ 11.2.5

What Documents and Things You Can Request .........................................................11–9

§ 11.2.6

How to Draft Your Requests...............................11–10 (a)

General Principles .....................................11–10

(b)

Drafting the Introduction ..........................11–11

(c)

Drafting Specific Requests........................11–17

Responding to Requests for Production ..........................11–20 § 11.3.1

When to Respond ...............................................11–21

§ 11.3.2

Time, Place, and Manner of Production.............11–22

§ 11.3.3

Objections to Requests.......................................11–23 (a)

Overall Approach ......................................11–23

11–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 11.3.4

(b)

General Objections ...................................11–25

(c)

Specific Objections ...................................11–26

Duty to Supplement Requests ............................11–29

EXHIBIT 11A—Sample Request for Production of Documents ................................................................................... 11–31 EXHIBIT 11B—Sample Response to Request for Production of Documents ......................................................... 11–33

11–ii

CHAPTER 11

Requests for Documents and Things and for Entry Upon Land Stanley F. Pupecki

Scope Note This chapter addresses document production requests and requests for entry upon land. It addresses a series of procedural issues relating to topics such as timing, deadlines, and limitations on the number of requests allowed. It then provides detailed drafting guidance, including practical advice on introductions as well as itemized requests. The chapter concludes with a discussion of the procedural and strategic considerations involved in responding to requests, including guidance on drafting objections. Included with the chapter is a sample request for production of documents.

§ 11.1

INTRODUCTION

Requests under Rule 34 of the Rhode Island Superior Court Rules of Civil Procedure are among the most important discovery devices available. While most commonly associated with “requests for production of documents,” Rule 34 permits you to request virtually any tangible thing that may have relevance to the case that is in the “possession, custody or control” of another party in the case. In addition, Rule 34 allows you to request an opportunity to enter upon land in the possession or control of another party so that you may test, photograph, sample, or otherwise inspect relevant conditions, objects, or operations on the premises. Thus, it is through Rule 34—along with a complementary rule, Rule 45, which is applicable to evidence in the possession of nonparties—that you can gather any and all relevant, physical, nonprivileged materials that are in the possession of others. In the event that your case goes to trial, some of the materials you discover will become exhibits for your direct and cross-examinations. These materials will help shape the strategy of your case, expose its strengths and weaknesses, and suggest additional avenues for discovery.

11–1

§ 11.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The first part of this chapter provides general guidance on how to draft requests for production that will secure relevant, nonprivileged materials as efficiently and effectively as possible. The second part of this chapter provides guidance on responding to production requests.

§ 11.2

DRAFTING AND SERVING DOCUMENT PRODUCTION REQUESTS

§ 11.2.1 Targets for Document Requests There are three broad categories of persons and entities from whom you should request documents and things: • parties, • private nonparties, and • public nonparties. As with most aspects of discovery, the process of identifying precisely whom to target within each of these categories should involve your client’s input at the earliest stage possible. Therefore, you should have the goal of identifying targets for Rule 34 requests firmly in mind during your initial meetings with your client and while you are making your first review of the case file. Ask your client and yourself where relevant materials may be located. Practice Note Having your client give you an oral or written summary of the relevant facts is a good way to highlight the entities or categories of entities that may possess discoverable materials.

(a)

Parties

The first and most obvious targets for document requests are other parties. Rule 34(a) of the Rhode Island Superior Court Rules of Civil Procedure states: Any party may serve on any other party a request (1) to produce and permit the party making the request . . . to inspect and copy, any designated documents . . . which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served. 11–2

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.2

Where there is more than one other party in the lawsuit, you should serve all of them with requests for production. Even though the term “possession, custody or control” is interpreted broadly to require parties to produce documents in the hands of agents, parents, or subsidiaries, you should err on the safe side and serve all parties with requests—even if you suspect that one or more of the parties is related or controlled by a common entity. Likewise, simply because there may not be claims between your clients and certain of the parties in a multiparty suit is no reason not to consider serving those parties with requests as well. These other, nonadversarial parties may very well have materials that are relevant to your client’s case. Practice Note In the event that you and the other party share a common adversary (the plaintiff, for example), the other party may be willing to share these materials with you without a formal document request.

(b)

Private Nonparties

Though Rule 34 requests may only be propounded upon parties, subpart (c) of the Rule specifically directs litigants to Rule 45 in order to secure the discovery sought from nonparties. Under Rule 45, commonly referred to as a subpoena duces tecum, you may serve a subpoena, under the authority of the court, that “command[s] each person to whom it is directed . . . to produce and permit inspection and coping of designated books, documents or tangible things.” Super. R. Civ. P. 45(1)(D). Rule 45 is designed to give parties access to any relevant, nonprivileged evidence that may be in the hands of a nonparty. As such, a nonparty who is properly served with a subpoena must comply, and any unexcused failure to obey a subpoena is punishable by contempt. See Super. R. Civ. P. 45(e). The Rule, however, also places a duty on the issuing party to “take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Super. R. Civ. P. 45(c). The Rule permits nonparties either to object or to move to quash a subpoena that is overly burdensome or seeks the production of privileged or confidential matters. See Super. R. Civ. P. 45(c)(2)(B), (d). Practice Note As with other aspects of discovery, seeking compromise and cooperation with a nonparty you have served with a subpoena is an excellent way to minimize the risk of costly disputes, while still obtaining the documents and materials you need for your client in a timely fashion. Any possibility that the nonparty may be called as a witness

11–3

§ 11.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

in the case would be yet another reason to avoid generating any antagonism during the course of discovery.

Reviewing the case file, asking your client the right questions, and framing effective interrogatories will help to identify the nonparties you should target with a subpoena. If medical damages are an issue, for example, you should subpoena the opposing party’s medical records. Similarly, in most business disputes, you will want to subpoena the other party’s bank and financial statements. If the occurrence or timing of a telephone call is in dispute, you should consider a subpoena of telephone records from the participant’s telephone and cell phone companies. As an initial matter, of course, you should request these types of materials from the opposing party. Parties, however, commonly do not have complete sets of such records, and issuing a subpoena to the appropriate nonparty may therefore be the best way to obtain what you need. Example Where the other party is claiming medical damages in the lawsuit, you will want to subpoena the other party’s medical records. To identify the particular medical providers you will need to subpoena, you should make this topic the subject of an interrogatory: Please identify all doctors, nurses, hospitals, and/or other health care providers who treated Plaintiff at any time in the ten years prior to the accident (including his or her general internist, ophthalmologist, and any other specialists from whom he or she received treatment) and include in your answer the following information: • the full name, current address, and address at the time of the accident of such doctors; • the general nature of the sickness, disease, or injury for which Plaintiff was treated; and • the dates of treatment.

Where a Rule 45 subpoena is being served upon a nonparty corporation, the subpoena is commonly addressed to the “keeper of records” of the corporation and is accompanied by a notice of deposition. Generally, the party serving the subpoena agrees that the keeper of records need not appear for the deposition if the requested documents are produced on a timely basis. Serving a subpoena on a nonparty located in another state or country is complicated. How to effect proper service is determined both by the provisions of R.I. Gen. Laws § 9-17-1 et al, and the rules of the jurisdiction where the nonparty is located.

11–4

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.2

Practice Note An excellent way to deal with an out-of-state nonparty is to first find out if the party will cooperate with the document request without the need to go through the formal process of service. By offering to help defray the nonparty’s costs of complying with the subpoena, you may be able to convince the nonparty to cooperate. Frequently, your opponent will want the documents as well, and it commonly makes sense for your client and the opposing party to split the costs involved with obtaining documents and materials from an out-of-state nonparty.

(c)

Public Nonparties

An additional procedure is available for obtaining materials from public entities: requesting documents through local, state, and federal public records laws. If the public entity is federal, the request for public records is governed by the Freedom of Information Act. See 5 U.S.C. § 552. For state entities, the Access to Public Records Law is controlling. See R.I. Gen. Laws § 38-2-1 et al. The General Assembly has given the term “public records” a very broad reading; however, the statute contains a long list of excepted documents that are not “deemed public.” R.I. Gen. Laws § 38-2-2(4)(A)–(Y). Essentially, any document created or received by an administrative agency is covered unless otherwise exempt. On request, these documents are available to copy or inspect. R.I. Gen. Laws § 38-2-3. Public bodies acting as custodians of records can charge set fees for retrieval and copying of documents. R.I. Gen. Laws § 38-2-4. Since the Access to Public Records Law mirrors the Freedom of Information Act, 5 U.S.C.A § 552, the Rhode Island Supreme Court has looked to federal case law to interpret the statute and it’s exceptions. Providence Journal Co. v. Convention Ctr. Auth., 774 A2d 40, 46 (R.I. 2001).

§ 11.2.2 When to Serve Requests As with other aspects of the discovery process, requests for production should ordinarily be initiated on the most timely and aggressive schedule possible. By obtaining the other party’s documents as soon as practicable, you may be able to make early assessments of the strengths and weaknesses of your opponent’s case and structure further discovery and case preparation accordingly. The documents you discover will, among other things, help you determine the depositions you need to take and identify which entities you need to serve with Rule 45 subpoenas. Moreover, an early, aggressive approach to discovery sends an effective signal to the opposing party that you are seriously and diligently pursuing the litigation. 11–5

§ 11.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

These strategic considerations argue in favor of serving your initial requests for production of documents on the other party as soon as possible after commencement of the lawsuit. Rule 34 provides for initiating discovery at an early stage by permitting the plaintiff to serve production requests with the summons and complaint, along with interrogatories. The defendant may serve production requests and interrogatories at any time after the commencement of the lawsuit. While it is important to serve discovery requests early in the litigation, you still need to devote the time necessary to consider the kinds of facts and materials you need to discover and to ensure that requests are drafted carefully and precisely. You do not want to send out requests for production without devoting the necessary thought and analysis any more than you want to file a complaint or serve an answer without investigating the underlying allegations. In cases where time is of the essence, you may want to develop your discovery requests at the same time you are drafting the complaint or answer in the case and to serve the discovery requests along with your opening pleading. In most instances, however, an opposing party’s responsive pleading may suggest additional areas or topics on which to focus your discovery efforts, so you may prefer to review the other party’s responsive pleading before finalizing and serving your requests. Obvious though it may be, the sooner you propound Rule 34 requests, the sooner you will receive a response. It is often the case that securing certain documents from an opposing party, e.g. older medical records and documents in storage, will require more time than the Rule specifically provides. Counsel should work together to agree on acceptable discovery extensions; however, if you delay in requesting documents that prove elusive to the gathering party, you risk postponing depositions, Court Annexed Arbitration, dispositive motions, and ultimately, resolution. Finally, if you attempt eleventh hour Rule 34 requests that will pose significant time or financial burdens on the responding party, objections to such requests may be sustained due in large part to the timing of the request. Lynch v Lead Indus. Ass’n, 2005 R.I. Super. LEXIS 79, at *3–*5. Practice Note While some attorneys prefer to receive answers to interrogatories before serving requests for documents so that they may then request documents identified in the interrogatories, you may accomplish the same objectives by sending out requests simultaneously with interrogatories and including document requests for “all documents identified in your answers to interrogatories” and “all documents reviewed by you for preparing answers to interrogatories.” Though the requests, like the responses, must be signed and certified by counsel before being sent to the other parties, the same are

11–6

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.2

not to be filed with the court unless ordered by the court or in connection with motions under Rule 26(c), 37, or 56. Super. R. Civ. P. 5(d).

Under the Federal Rules of Civil Procedure, parties may not serve discovery requests until they have first met and conferred pursuant to Fed. R. Civ. P. 26(f). Furthermore, under Local Rule 26.2(a) of the U.S. District Court for the District of Massachusetts, “before a party may initiate discovery, that party must provide to other parties disclosure of the information and materials called for by Fed. R. Civ. P. 26(a)(1).” If you are served with requests for production or other discovery requests by a party who has not provided automatic disclosures under the local rules, you should notify the opposing counsel in writing that the requests are premature and invite him or her to contact you to arrange a time for the conference required under Fed. R. Civ. P. 26(f).

§ 11.2.3 Extensions and Discovery Deadlines The Rhode Island Superior Court Rules of Civil Procedure allow forty days from the date of service to respond to a request for production—sixty days if the request was served together with the summons and complaint. Super. R. Civ. P. 34(b). Note that Rule 34 requires a party to serve written responses— including objections—to the discovery requests by these deadlines. Upon motion, however, “the court may allow a shorter or longer time.” See Super. R. Civ. P. 34(b). Though not specifically sanctioned by the Rule, parties often agree to requests for extensions of time to respond to Rule 34 discovery and commemorate the same with stipulations that are filed with the court. Practice Note The companion Rhode Island District Court Rule of Civil Procedure 34 is essentially similar to the Superior Court version; however the time for serving objections to Rule 34 requests is twenty days.

Generally, there are no discovery closure or cutoff dates for cases filed in the Rhode Island Superior or District Courts. In medical malpractice actions and other complex cases, however, the Superior Court will often require a discovery conference and will order a discovery schedule that may set a firm date for the completion of written discovery, including Rule 34 requests. In other cases, the parties may motion the court for a discovery schedule. Once the court enters a discovery schedule, however, the parties can not simply stipulate to alter the deadlines but must file a motion to amend the previously entered order. Practice Note Generally, it is a good idea, as the serving party, to permit reasonable extensions. As the Rhode Island Bar is small and collegial, you will

11–7

§ 11.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

most likely be dealing with the opposing attorney on other cases. Thus, though you may be the party granting extensions in one case, you may be the requesting party in another. Most members of the Bar take these professional courtesies seriously and memories are long when the same are not reciprocated. As the responding party, you should seek an extension, if one is necessary, sufficiently in advance of the response date to allow time to react if opposing counsel denies the request. In that event, you must either complete discovery on time or seek relief from the court.

Rule 29 of the Federal Rules of Civil Procedure is more expansive than the Rhode Island counterpart. Subpart (b) of the Rule specifically allows parties to stipulate to discovery extensions unless “it would interfere with the time set for completing discovery, for hearing a motion, or for trial.” Fed. R. Civ. P. 29(b). Although there is no comparable explicit provision in the Rhode Island rules, counsel obviously must conform to any applicable restrictions, such as the discovery schedules discussed above. Where the parties believe they will not be able to complete discovery within the time allowed, they may request that the court extend the discovery deadline. Where the request to extend the deadline is made jointly by the parties before expiration of the deadline and the parties have pursued discovery diligently and are seeking only a slight further extension of time, courts are generally willing to grant the extension. Where a party has no excuse for failing to initiate document requests before the conclusion of the deadline, however, or where prior extensions of the discovery deadline have already been granted, a court is unlikely to view such requests favorably. Indeed, the federal rules contain specific provisions to ensure that requests for production are not “interposed . . . to cause unnecessary delay.” Fed. R. Civ. P. 26(g)(2)(B).

§ 11.2.4 Number of Requests Allowed Under the Rhode Island Superior Court Rules of Civil Procedure, there is no limit to the number of sets of document requests that a party may issue. Therefore, absent any contrary court orders or other restrictions, a party may issue additional requests, provided there is enough time left for the other party to respond before any applicable deadlines, such as an upcoming trial. Although there is no specific limit to the number of requests allowed, the propounding party must still be mindful of the dictates of Super. R. Civ. P. 26(b)(1), which governs the “frequency or extent of use of the discovery methods.” Pursuant to Rule 26, the use of discovery methods, such as Rule 34 requests, “shall be limited by the court if it determines that” the discovery sought is cumulative, unduly 11–8

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.2

burdensome, expensive or disproportionate to the “needs of the case” and the “amount in controversy.” Super. R. Civ. P. 26(b)(1)(i)–(iii).

§ 11.2.5 What Documents and Things You Can Request Under Rule 34(a), the scope of documents and things you may request is exceptionally broad. Essentially, the Rule entitles parties to discover from each other all relevant, nonprivileged, and discoverable material, whether documents or some other physical thing. The term “document” includes “writings, drawings, graphs, charts, photographs, phono-records and other data compilations from which information can be obtained[.]”Super. R. Civ. P. 34(a). The term “things” is interpreted equally broadly, and courts have ordered that a whole range of requested items be produced for the opposing party to inspect. If the thing requested is capable of being discovered or inspected and is relevant to the case, courts will order it produced. Courts interpret “relevance” broadly. Rule 26(b)(1) states the following: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Relevant documents and materials may include those things that may be inadmissible but are “reasonably calculated to lead to the discovery of admissible evidence.” Super. R. Civ. P. 26(b)(1). Practice Note While courts interpret “relevance” broadly for discovery purposes, they will, at the same time, take special steps to protect against the production of things that may contain confidential medical information or other sensitive or protected information. Thus, in a personal injury action, if you are requesting the production of medical records predating the date of loss, you will need to show how and why the plaintiff’s prior medical records could lead to the discovery of admissible evidence. For example, if the plaintiff is claiming a permanent neck injury as a result of a motor vehicle accident, her prior medical records for may yield information indicating the alleged injuries were, at least in part, preexisting.

11–9

§ 11.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Though relevant, Rhode Island law is clear that written statements obtained by insurance companies from witnesses in anticipation of litigation are protected by the attorney work product privilege and not subject to production unless the requesting party can demonstrate that the denial of the request will result in injustice or undue hardship. Fireman’s Fund Ins. Co. v. McAlpine, 391 A.2d 84 (R.I. 1978).

Given the breadth of materials that are potentially discoverable, parties commonly fall prey to the tendency to draft overbroad requests for production. As detailed in the next section, it is precisely because of the potential breadth of discovery that you should take special care to draft requests narrowly and particularly so that you receive exactly the kinds of materials you are seeking. Practice Note Where maintenance of computer records is a concern, you should request document retention policies. If you are concerned that the opposing party may attempt to dispose of evidence that is easily destroyed—such as electronic files—you should consider moving for a temporary restraining order at the outset of the lawsuit or to secure an agreement from the other side that they will preserve this evidence. If documents or materials are nevertheless destroyed in anticipation of litigation, you should argue to the court that a negative inference be drawn from the other party’s destruction of evidence or that reliance on the destroyed evidence be excluded altogether. See Mead v. Papa Razzi Rest., 840 A2d 1103, 1108 (R.I. 2004) (holding that the doctrine of spoliation allows the jury to draw an inference that the destroyed documents/things were unfavorable to that party).

Ethics Commentary It should come as no surprise that a lawyer cannot unlawfully alter, destroy, or conceal relevant documents, nor can a lawyer advise or assist others to do it. R. Prof. C. 3.4(a). If a lawyer participates in the unlawful destruction of documents, there may be not only a serious evidentiary problem at trial but also serious disciplinary, malpractice, and even criminal consequences.

§ 11.2.6 How to Draft Your Requests (a)

General Principles

Under Rule 34, a request for production of documents “shall set forth the items to be inspected either by individual item or by category, and describe each item 11–10

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.2

and category with reasonable particularity.” Super. R. Civ. P. 34(b). With respect to the requirement of “particularity,” the Rhode Island Supreme Court has held that “a petition satisfies the requirement of particularity when it contains averments that are sufficient to inform the court of the existence of the document sought and the nature thereof.” Legare v. Urso, 191 A.2d 277, 287 (R.I. 1963). Apart from the need to comply with the Rule, however, it is also in the interests of the requesting party to ensure document requests are well crafted. Even though Rule 34 dictates that objections be specific and that the party respond to the request to the extent it is not objectionable, requests that are overbroad invariably prompt objections and are accompanied by refusals from the opposing party to produce any responsive documents. At a minimum, an overbroad request gives the opposing party an excuse to either withhold documents by asserting objections or overproduce documents, which will make any review of those documents all the more cumbersome. However, it is generally preferable to request as many possibly relevant documents as possible as one never knows what one will discover. The best way to ensure that you receive the documents you need, while minimizing the opposing party’s excuses to object or overproduce, is to draft both the introduction to the requests and the requests themselves with care and precision. Practice Note In drafting requests, keep in mind that your own document—with minor revisions—could be sent back to you as a request for production. Therefore, you should avoid imposing burdens on your opponent that you would be unwilling to impose on your client.

Practice Note Although Rule 45, which governs subpoenas to third parties, does not contain the same requirement of “reasonable particularity,” the principles set forth below apply equally to document requests served on nonparties.

(b)

Drafting the Introduction

Instructions There are different schools of thought with respect to the utility of including instructions within the introduction to the request for production. Certainly, Rules 26 and 34 detail the obligations of the responding party. For example, the inclusion of the instruction that the responses are due within forty days from the date of service merely restates the party’s obligation under the Rule. Others 11–11

§ 11.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

believe that every well-drafted set of document requests should begin with an introduction containing instructions and definitions. Those utilizing instructions claim that a lack of clear instructions and definitions tends to make the requests overbroad, vague, and ambiguous and provides a basis for the other party to object to the requests as a whole. Practice Note Even where a party’s obligations are relatively settled under the rules or case law, you should still spell out certain obligations in the instructions. For example, the instructions must include the address where the responses are to be sent. You should also include a succinct paragraph detailing the party’s obligation to provide privilege logs for withheld documents and otherwise state the basis of any objections. Furthermore, you should include an instruction requiring the other party to identify documents requested that are missing, destroyed or no longer in the party’s “possession, custody or control.”

If you decide to include instructions, the following may be of assistance.

Time, Place, and Manner One important instruction to include is a direction on the “time, place and manner of making the inspection and performing the related acts” that are requested of the other party. Super. R. Civ. P. 34(b). Most commonly, you will want to request that the other party produce any requested documents or things at your offices within the forty days allowed under the rules. You should identify a specific time and date as well as the place (e.g., your office’s address) for the production. Where the volume of documents at issue is limited, the producing party will often be willing to send copies to the requesting party if copying expenses are reimbursed. Where the volume of documents is large, the producing party will usually object to producing the requested materials at your offices and state that the responsive items will be produced at the offices of its own counsel or at the offices of the client. You will then want to negotiate a compromise method for completing the production, but you should still identify the time, place, and manner in your initial request so as to comply with the Rule.

Manner of Production Although Rule 34(b) requires the responding party to produce documents “as they are kept in the usual course of business” or to “organize and label them to correspond with the categories in the request,” it is still good practice to draw the opposing party’s attention to this requirement to better ensure that the production is done correctly the first time. 11–12

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.2

“Possession, Custody or Control” Include an instruction that the party produce all documents in its “possession, custody or control” and clarify that this term includes documents in the custody of persons or entities that are the agents of or controlled by the party: You are requested to produce all documents in your custody, possession or control, including all documents that are in the custody of your employees, servants, attorneys, consultants, accountants, or agents, regardless of the location of such documents. Practice Note Be sure to follow up on this instruction with appropriate questions at deposition. It is often helpful to know what steps were taken to gather responsive materials.

A party, of course, has no duty to create documents in response to a document request. Nor can a party be sanctioned under Rule 37 for failing to produce documents that it no longer has in its possession, although sanctions may be appropriate under the doctrine of spoliation. See Mead v. Papa Razzi Rest., 840 A2d 1103, 1108 (R.I. 2004) (holding that jury could draw adverse inference with respect to defendant restaurant’s failure to adequately explain whether or not an incident report that should have been created in accordance with its normal business practices was, in fact, created). Nevertheless, including this instruction will help to avoid unnecessary disputes with the other party about its obligations in responding to the requests.

Use of Language It is a good idea to limit the other party’s ability to use semantic excuses to avoid producing categories of documents: The singular form of a noun or pronoun shall be considered to include within its meaning the plural form of the noun or pronoun so used, and vice versa; the use of the masculine form of a pronoun shall be considered to include also within its meaning the feminine form of the pronoun so used, and vice versa; and the use of any tense of any verb shall be considered to include also within its meaning all other tenses of the verb so used.

11–13

§ 11.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Objections To help minimize the likelihood that a responding party will offer up blanket objections in response to your requests, include an instruction directing the responding party to set forth objections and claims of privilege clearly and specifically: If you object to any of the specific Requests for Production set forth below, the precise grounds for your objection(s) shall be stated, with particularity. If any objection rests in whole or in part on a claim of privilege, the privilege claimed should be stated with particularity.

Claims of Privilege The fact that some documents that are responsive to a request are privileged does not justify withholding or delaying the production of nonprivileged, responsive documents. By the same token, a party may not withhold an entire document simply because it believes a portion of it is privileged. Therefore, you should include an instruction clarifying these distinctions: In the event that you object to or claim a privilege with respect to any Instruction or Request for Production, in whole or in part, you are requested to produce all documents (or portions thereof) requested in that portion of the Request for Production as to which you have no objection or claim of privilege. In addition, where a responsive document contains portions that you believe are protected from discovery, you must produce the document with the portion you claim to be protected redacted. It is generally good practice to instruct the opposing party to prepare a log of the documents that it is withholding as privileged or otherwise protected from discovery, setting forth the identity of the document and the basis for the claim of privilege: With respect to each responsive document withheld from production pursuant to a claim of attorney-client privilege, attorney work product, or any other privilege or protection, please state or identify: (i) the date of the document; (ii) the document’s author(s) or originator(s); (iii) the title of the author(s) or originator(s); (iv) all recipients of the document and all persons coming into possession of the document; (v) the subject matter(s) of the document; (vi) the number of pages of the document; and (vii) the precise basis, in detail, for the privilege claimed or the objection made with respect to the document. 11–14

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.2

Documents No Longer in Existence Likewise, you will want to know whether responsive documents or files no longer exist and, if so, the reason or reasons that such documents or files are missing or were destroyed: If any document responsive to a Request for Production was, but no longer is, in your possession, custody or control, please identify that document and state whether any such document (i) is missing or lost; (ii) has been destroyed; (iii) has been transferred voluntarily or involuntarily; or (iv) has been otherwise disposed of, and, in each instance, please explain in detail the circumstances surrounding any such disposition. Where a party has negligently or intentionally lost or destroyed evidence known to be relevant to an upcoming legal proceeding, the court may order sanctions to remedy any resulting prejudice to the opposing party. See Mead v. Papa Razzi Rest., 840 A2d 1103, 1108 (R.I. 2004) (holding that jury could draw adverse inference with respect to defendant restaurant’s failure to adequately explain whether or not an incident report that should have been created in accordance with its normal business practices was, in fact, created).

Supplementation of Responses It is also wise to request that the party supplement its responses: This Request for Production of Documents shall be deemed continuing so as to require a timely, supplemental response if any additional responsive documents are discovered, located, identified or obtained after you complete production of documents responsive to this Request for Production of Documents. Practice Note Note that a common response to this type of instruction is to object to the extent that the instruction purports to impose obligations beyond those imposed by the applicable rules of civil procedure. As discussed further below, however, Super. R. Civ. P. 26(e) requires parties to “seasonably” supplement their responses in certain instances.

The Rhode Island duty to supplement is broad and, as it relates to Rule 34 requests, requires a party to supplement his responses to “include information thereafter acquired under the following circumstances”:

11–15

§ 11.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

(2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (A) the party knows that the response was incorrect when made, or (B) the party knows that the response though correct when made is no longer true or complete and the circumstances are such that a failure to amend the response is in substance a knowing concealment. A further duty to supplement responses may also be imposed “by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.” Super. R. Civ. P. 26(e)(3). The federal duty to supplement is less stringent and simply requires timely supplementation if a party learns a response is incomplete or incorrect and the other parties have not received the additional or correct information through the discovery process. Fed. R. Civ. P. 26(e)(1)(A).

Applicable Time Period You will minimize claims of overbreadth by identifying a specific time period covered under the requests. Commonly, the time period that is relevant to a dispute is relatively well delineated. For example, most documents or things relevant to a landlord-tenant dispute or an employee-employer dispute will have been created during the term of the tenancy or employment, respectively. Accordingly, an instruction that the requests pertain only to that term will help avoid an objection that the requests are overbroad. You may word the instruction to allow you to direct certain requests to wider periods: Unless otherwise noted, this document request covers the period from January 1, 1996 through the present. Practice Note Note that the relevant time frames for particular issues in the case may be different. Do not hesitate to identify specific dates where appropriate.

Definitions It is equally essential that you draft a good set of definitions. You should define the terms you are likely to use more than once, such as “communications,” “documents,” or “relating to.” For example, the following would be used to define “relating to”:

11–16

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.2

The phrase “relating to” means concerning, describing, evidencing, or constituting. You should also define how you will refer to the parties: The term “Company” refers to the defendant Company Airlines, Inc., and any and all predecessor entities, successors, assigns, subsidiaries, affiliates, officers, directors, employees, agents, advisors, accountants and legal counsel. Finally, it is a good idea to define any financial or technical terms you will use, bearing in mind that the definition of any such terms may vary depending on the facts and circumstances of each particular case. For example, the following could be used to define the term “financial statements”: The phrase “Financial Statements” includes all financial records kept in the regular course of the business in question including, but not limited to, budgets, financial statements, draft financial statements, accounting entries, balance sheets, and financial audits performed by any employee, agent, consultant, or accountant, including third parties. Where you are using a word or term that is defined in the rules, it is good practice to phrase the definition with reference to the applicable rule: The term “documents” as used in these requests shall have the same definition as that term is given in Rhode Island Rule of Civil Procedure 34(a).

(c)

Drafting Specific Requests

When drafting your requests, think about the categories of documents that may be available and relevant to your case. In addition, especially for the first set of requests that you draft, you should view the requests as a method of determining what further discovery you will need to take. Some examples of categories of documents or things you will want to request are as follows.

Correspondence/Communications You should always request all of your opponent’s correspondence and other communications relating to the dispute. Even if your client has provided you with a complete correspondence file, you should still request correspondence from the other side because your opponent may have copies of letters that contain notes in the margin that are useful to your case. In addition, your request for 11–17

§ 11.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

correspondence and communications should extend to internal communications and memoranda as well as to communications with third parties. You should either define correspondence to include “electronic mail” or include a specific request for copies of electronic mail, either in electronic or hard copy format. Practice Note Depending on the particular facts and circumstances of the dispute, the addition of limiting phrases and dates is an effective way to turn an overbroad request into one that is more particularized. Overbroad: All correspondence between you and Company A. More Particular: All correspondence between you and Company A from July 1, 1997 to the present. Even the second request, of course, may be overbroad if the two entities have long-standing or extensive contacts beyond the circumstances in dispute. In that event, further limitation—for example by subject matter or identity of correspondent—would be warranted.

Notes and Records of Conversations If your client and another party may have had telephone conversations or personal meetings, you should request notes or other records of those events. Commonly, a party’s complaint will make explicit references to such telephone calls or meetings, which affords you an additional opportunity to frame a portion of your request with particularity: All documents relating or referring to the meeting between the Parties on May 27, 1997 referenced in paragraph 27 of your Complaint. Either through a definition or a specific request, you should make sure that your request for records of meetings includes copies of schedules, calendars, or day planners that may reflect when particular meetings took place.

Financial Information Requesting financial information requires special care in drafting to avoid the potential perils of overbreadth or ambiguity. A good set of definitions and terms that narrows the date range and category of financial records you are seeking will help ensure that you are not deluged with useless information or, alternatively, that you do not miss important categories of documents. Tax returns, bank statements, and audited financial statements are examples of financial records you 11–18

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.2

are likely to want to request, depending on the circumstances of the particular case. Practice Note The Rhode Island Supreme Court has held that it was error for a Superior Court Justice to order the production of income tax returns when there was no showing that the same were relevant to any issues raised in the litigation. Moretta v. Moretta, 213 A.2d 808 (R.I. 1965). Note that with public companies some of this material may be available outside of discovery, for example, in filings with the Securities and Exchange Commission.

Investigations and Reports Investigations and reports prepared in anticipation of litigation will commonly be protected as work product. There may be investigations or reports that the other party prepared, however, in the usual course of its business and well in advance of any litigation. You should request any such materials that may relate to the case. In a construction defect dispute, for example, the opposing party may have performed investigations of the defects in question as part of a remedial effort rather than as preparation for litigation.

Photographs, Videos, and Other Recordings Remember to draft your request broadly enough to include all methods of recording and preserving information. Where the dispute involves a parcel of land, for example, request maps along with any photographs or videos that may have been made of conditions on the land. Practice Note If you are plaintiff’s counsel, you should request all surveillance materials, including pictures, video, etc. Even though the same qualify as attorney work product, Rhode Island law requires production of surveillance materials after a plaintiff’s deposition if defense counsel intends on presenting the material at trial. Cabral v. Arruda, 556 A.2d 47 (R.I. 1989).

Physical Evidence If your case involves physical evidence, such as a defective product, condition, or structure, or an automobile accident, you should make a request to inspect the physical evidence if it is in the opposing party’s possession or control. Where the 11–19

§ 11.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

lawsuit relates to conditions or operations on a certain piece of land—such as a construction dispute relating to a building that was allegedly constructed defectively—you should include a request to enter upon the land to inspect those conditions. Example Where your client is involved in a case involving an automobile accident, you should include a request to inspect the automobile of the other party in your request for production under Rule 34: The Plaintiff hereby requests permission to measure, survey, photograph, test or sample the motor vehicle that Defendant operated at the time of the accident.

Practice Note When dealing with equipment or land, it is critical to determine whether or not there have been any changes or repairs. You should be sure to be able to establish the date of any photographs and develop evidence matching or comparing the conditions for the events at issue with those in effect at the time of the inspection.

§ 11.3

RESPONDING TO REQUESTS FOR PRODUCTION

As soon as you have received and reviewed a request for production from opposing counsel, you should forward it to your client and make arrangements to discuss the request. In first speaking with your client about the request, keep in mind the following objectives: • make sure that your client understands the nature and scope of the documents being requested, • help your client come up with a plan for locating and assembling all the requested documents, and • arrange to review all documents before any are produced. Practice Note When your client is a corporation, consider circulating a memorandum to all personnel and corporate agents who might have responsive documents, attaching the document request and explaining procedures for assembling responsive materials.

11–20

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.3

The process of locating requested materials—many of which may be located in off-site storage facilities or buried in file drawers—and reviewing and organizing them for production is time-consuming for both you and the client, so it is important that you start as soon as you can. Practice Note In large document cases, it is good practice to appoint a corporate designee who is responsible for assembling and maintaining the original materials in secure files.

§ 11.3.1 When to Respond As indicated above, you have forty days to respond to a request for production of documents—sixty days if the request was served on you with the summons and complaint. See Super. R. Civ. P. 34(b). Upon receipt of a request, it is imperative to review the request and immediately prepare objections to those requests that are objectionable. As it can be burdensome even to discover whether a certain document or category of documents exists, under certain circumstances you may be justified in asserting an objection without first confirming whether or not the documents in fact exist. D’Amario III v. State, 686 A.2d 82 (R.I. 1996) (vacating as an abuse of discretion an award of sanctions against party that asserted valid objection to request for production of documents without first ascertaining whether a responsive document existed). However, if the request is proper and it turns out that your objection is not well grounded, your asserting the objection may be sanctionable under either Rule 26(f) or Rule 37(a). D’Amario III v. State, 686 A.2d at 86. In addition, “a party who withholds information that is ‘otherwise discoverable’ by claiming that it is privileged or subject to protection as trial preparation material is required under S. Ct. R. Civ. P. 26(b)(5) to make this claim expressly and to describe ‘the nature’ of the documents not produced or disclosed in a manner that will enable other parties to assess the applicability of the privilege or protection that is claimed.” D’Amario III v. State, 686 A.2d at 86 n.11. Although you should move rapidly and efficiently to prepare your written response and arrange for the actual production, you should not serve your response on the requesting party until you have determined whether documents exist that are responsive to each request. Practice Note It is particularly important that you not rush the process of identifying and segregating privileged or work-product documents, because even minor errors in handling these materials can result in costly consequences, such as the inadvertent production of privileged

11–21

§ 11.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

documents. Therefore, if you find you will be unable to assemble and review the documents and prepare your written response within the time allowed, make sure you request an extension before the time expires. In cases involving a voluminous production of documents, you may want to propose a “rolling production” whereby you start producing documents on a date certain and complete production by a later date.

Generally, counsel grant each other the courtesy of brief extensions of time to file discovery responses, but parties that fail to file a response or request an extension within the time permitted under the rules may expose themselves to a motion for sanctions or be deemed to have waived the right to object altogether. Practice Note It is important to maintain the integrity of original documents. Often copies are not legible. It is also important to keep a record identifying the person, department, and file that produced particular documents.

§ 11.3.2 Time, Place, and Manner of Production Rhode Island Superior Court Rule of Civil Procedure 34(b) requires that the requesting party “specify a reasonable time, place and manner” for the requested production to take place. In most cases, the responding party simply copies the responsive documents and forwards them to counsel for all other parties. If the document production is voluminous and, for example, requests an entire construction file, you can arrange for the requesting party to review the same at your office. The reason for this is obvious, the documents remain in your possession and you are freed from the burden of transporting the documents for review at another location. As previously mentioned, you will need to review all of the responsive documents before any are produced, and this review needs to take place in a setting where you can preserve confidentiality—your offices or your client’s offices. You will need copies of all the responsive documents—both privileged and nonprivileged—and you should keep them at your offices. Therefore, you should object to producing the responsive, nonprivileged documents at opposing counsel’s offices and, instead, agree to produce them at your offices at a specific date and time. In the spirit of cooperation, following the objection, you may also offer to produce the documents at a time that is mutually convenient. The general practice is that the requesting party pays for any copies. In commercial cases where both sides have roughly the same quantity of documents, the parties often simply exchange copies. In other cases it is customary, as a courtesy, to offer to copy the responsive documents and send them to the opposing party at its expense. 11–22

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.3

The following language may be used in a response: Defendant objects to the request to produce its responsive documents at the offices of Plaintiff’s counsel. Defendant will produce its responsive documents at the offices of its counsel on December 31, 2001, or at a time and date thereafter that is mutually convenient. In the alternative, Defendant agrees to copy and send its responsive documents to Plaintiff’s counsel at Plaintiff’s expense. In any case involving a large volume of documents, it is common to “Bates” stamp each responsive document with an identifying letter and number. For example, if you are the plaintiff and have identified 1,000 pages of responsive documents, you could Bates stamp these documents with sequential characters within a range from PL0001 to PL1000. The Bates stamp system is the best way to keep track of a large volume of documents, and it will help you create an index of all the relevant documents in the case by Bates number. The Local Rules of the United States District Court for the District of Rhode Island mandate that council for the responding party affix Bates-stamped numbers to each page when the response to the requests for production exceeds fifty pages. LR Cv 34(b)(2). Practice Note Except in cases where there are only a handful of relevant documents, all documents should be Bates stamped. It is the only way to keep track of documents produced and withheld. If the other party fails to Bates stamp its documents, it is a good idea to Bates stamp them for your own organizational purposes. The same goes for documents produced by nonparties or governmental entities. While attorneys differ on whether you should Bates stamp documents being withheld for privilege or on some other grounds, one advantage of Bates stamping these documents is that it is then easier to create a privilege log or index and keep track of the documents.

§ 11.3.3 Objections to Requests (a)

Overall Approach

You should think carefully about whether a given request calls for objectionable material before trotting out every objection you can remember. Objecting unnecessarily or raising blanket objections will only prompt motions to compel and 11–23

§ 11.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

unnecessary discovery battles. If such a motion is filed, you must be prepared to explain to the court the good-faith bases for your objections. Improper or inappropriate objections could lead to sanctions, as noted above, including default, dismissal, or preclusion orders. That is not to say that you should use objections sparingly either. Objections are critical to, among other things, protecting confidential information and ensuring that the case does not veer off into irrelevant terrain. When objections are not made, they are generally deemed to be waived. Absent an agreement between the parties, belated objections served beyond the time limits established by the rules may be disregarded by the court. See, e.g., Corvese v. Medco Containment Servs., 687 A.2d 880 (R.I. 1997). If there are genuinely good grounds to object, however, you should be prepared to state them with specificity. Precision and specificity in drafting objections not only facilitates the discovery process by clarifying what issues, if any, are generally disputed by the parties, but also gives you greater credibility before the court in the event a discovery battle does result. Courts have grown exasperated with parties that play games with discovery, and they will impose sanctions on parties that raise frivolous objections as excuses for failing to produce responsive documents. One important part of making your objections specific is to be clear about exactly what part of a request is objectionable. It is rare, for example, that a request will seek solely privileged documents. It is common, however, for parties to request a wide range of documents (for example by beginning a request with “all documents”) that will necessarily include privileged documents within its scope. You should object to the request to the extent it seeks privileged documents (and other documents you have good grounds to refuse to produce) but agree to produce the nonprivileged, responsive documents. Example Request: All statements obtained by you or your agents concerning the allegations contained in the plaintiff’s complaint. Response: Objection. This request seeks documents protected by the attorney-client privilege and the work-product doctrine. With respect to such documents, the only document in existence is a statement taken by my insurance carrier on March 4, 2010 in anticipation of litigation. A privilege log containing the factual and legal basis for this objection is attached. With respect to nonprivileged documents, the only document in existence is the statement of the plaintiff taken March 11, 2010 which is attached hereto as exhibit A. There are no other documents.

11–24

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.3

Another issue to clarify in preparing your written response is whether documents actually exist that are responsive to the request, regardless of whether they are covered by a privilege or some other protection. If you simply object to a request, the other party may justifiably assume that responsive documents exist that you are refusing to produce for some reason. That party may then decide to file a motion to compel production of those documents. Therefore, you will save yourself from any unnecessary disputes by making it clear when there are no documents that are responsive to a given request. Example Request: All incident reports involving other slip and fall accidents on the property for a period of six months prior to the incident in question. Response: Defendant’s standard practice to store incident reports in electronic form. After a due and diligent search of defendant’s computer files, there are no documents responsive to this Request. However, as discovery is ongoing, and, to the extent that responsive documents are hereafter discovered, defendant will produce said documents subject to any and all applicable privilege or objection. All such privileges and objections are hereby reserved with respect to subsequently discovered documents and other materials.

(b)

General Objections

At the outset of a written response to a request for production, some attorneys set forth general objections to the requests as a whole. The following are examples of common General Objections: Defendant objects to the lack of any instructions accompanying the Requests to the extent such lack of instructions makes the Requests vague and ambiguous. Defendant objects to each and every Definition and Request to the extent that they impose requirements beyond those provided in the Superior Court Rules of Civil Procedure. Defendant objects to each and every Definition or Request to the extent they purport to seek information that is subject to the attorney-client privilege or work-product doctrine or confidential commercial information. Given that Rule 34(b) requires that objections be stated specifically, it is arguable that these general objections run contrary to the mandates of the Rule. Such 11–25

§ 11.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

general objections could prompt motions to strike the same or for sanctions. Furthermore, if you do assert General Objections but do not reference the applicable General Objection in response to the specific request, you may risk having waived it. Therefore, it is bad practice to simply cite the General Objections— for example, with the phrase “see General Objections”—when objecting to a request. For example, a party answering as follows may be deemed to have waived the attorney-client privilege objection contained in its General Objections. The ramifications for both the client and the attorney are obvious. Example Request: All correspondence between you and Company X relating to the sale of the Property from June 1996 to July 1997. Response: Subject to and without waiving the General Objections, Defendant agrees to produce its documents that are responsive to this Request.

However, even if you enumerate the applicable General Objections in your Specific Objections, the very nature of General Objections creates the appearance that you are perfunctorily asserting blanket objections to requests rather than stating them with specificity as required under Rule 34. See Super. R. Civ. P. 34(b) (“If objection is made to part of an item or category [in a request] the part shall be specified and inspection permitted of the remaining parts.”). Ultimately, General Objections effectively qualify any response such that the party that propounded the requests is left unsure as to whether all responsive documents have been produced and all privileged documents have been identified, which, in turn, will likely lead to unnecessary motion practice and potential consequences.

(c)

Specific Objections

Relevance Under Rhode Island Superior Court Rules of Civil Procedure 26(b)(1), only information that is relevant to the subject matter of the lawsuit is discoverable. Therefore, you may base an objection on the fact that the documents or things sought are not relevant to the subject matter of the dispute. Remember, though, that courts give a broad interpretation to relevance, and so it is difficult to survive a motion to compel where this is the basis for resisting production. See also Super. R. Civ. P. 26(b)(1) (“It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”). Nevertheless, relevance is an important objection that must be raised if you are concerned that the purpose of the request is to broaden the scope of the lawsuit beyond its appropriate limits. 11–26

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.3

For example, it may appear that a request is designed to seek information to support a claim that has not been asserted in the lawsuit or that the other party cannot assert due to, for example, a statute of limitations problem. While courts generally do not want to waste time sorting out discovery disputes, a genuine dispute over the proper scope of the litigation is an important issue for the court to address. Raising relevancy objections is one way to get such issues before the court at an early stage of the litigation.

Privilege and Trial Preparation Materials You should, of course, make objections based upon the other main subjects covered in Rule 26(b)—matters that are privileged or that constitute trial preparation (work product) materials. Privileged and work-product-protected materials should be identified and segregated as soon as possible in the discovery process. Practice Note When objecting to document requests on the basis of the attorneyclient privilege or the work product doctrine, you should be prepared to provide a privilege log listing each individual document withheld on these grounds, the date it was generated, its author and recipient, to whom it has been disseminated, and a general description of its contents sufficient to enable a court to determine whether such documents are privileged, and the particular privileges asserted. However, if the request is overly broad and seeks every document in your possession mentioning the issues being litigated, a specific objection generally outlining the categories of records possessed should be sufficient. Needless to say, the most extreme care must be taken whenever privileged documents are being handled to avoid inadvertent disclosure and, where such disclosure unfortunately occurs, to avoid the conclusion that the disclosure effectuated a waiver of privilege.

Protective Order Grounds Rule 26(c) of the Rhode Island Superior Court Rules of Civil Procedure sets forth the various grounds on which a protective order from the court may be sought in response to discovery requests. These grounds provide appropriate bases for objections. You should object to any requests that seek information that would be annoying, embarrassing, oppressive, or unduly burdensome or expensive to produce. Parties, through their attorneys, commonly object on such grounds to requests for sensitive personal information that is of only tangential relevance to the case.

11–27

§ 11.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Practice Note Parties may seek to protect sensitive information by asking the court to impound or limit disclosure of confidential documents pursuant to a protective order. Courts may modify protective orders, however, to allow access to these documents by third parties who demonstrate significant interest in disclosure, such as the press.

While not explicitly referenced in the rules, parties also commonly object to requests that are overbroad, vague, or ambiguous or that impose obligations beyond those set forth in the rules of civil procedure. These objections are, essentially, another way of raising the “burdensome” objections, in that vagueness or ambiguity in requests tends to result in a wider and, thus, more burdensome range of documents being requested. Where a party intends to file a discovery motion, the Rhode Island Superior Court Rule requires that any party moving to compel discovery or to seek sanctions under Rule 37 first confer with the opposing party in good faith to narrow or resolve the issues in dispute. The moving party must certify in his motion that the conference has taken place. Failure to include such a certification is grounds for denial of the motion without prejudice. Practice Note Although Rule 37 allows the moving party to seek sanctions for the failure of the nonmoving party to comply with discovery requests, the same are very rarely sought in Rhode Island, where the Bar is small and collegial. Motions to compel responses to discovery are commonplace, as are motions to compel a further response to requests for productions and motions for conditional orders of dismissal where a party has failed to comply with a previous court order compelling discovery. Again, even though Rule 37 allows the party that succeeds in either pressing or objecting the motion to seek costs, such requests are nearly unheard of.

Although Local Rules 7 and 37 of the U.S. District Court for the District of Rhode Island do not address the need for parties to confer prior to filing discovery motions, Rule 37 of the Federal Rules of Civil Procedure contains such a requirement.

Confidential Commercial, Proprietary, or Trade Secret Information In certain types of real estate, commercial, or intellectual property litigation, one or both parties will commonly be concerned about producing commercial, proprietary, or trade secret information. While you, as the attorney, are the one who

11–28

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

§ 11.3

will identify privileged or work-product materials, your client will commonly be the one who is most sensitive about what confidential business information is produced. Either way, you should object to producing such confidential information and, if necessary, seek a protective order to guard against its disclosure or dissemination. Where both parties are businesses concerned about the unnecessary disclosure of confidential information, attorneys are commonly able to agree to the terms of a joint protective order, signed by both parties, that dictates the terms under which such confidential information will be produced. The following objection would be consistent with this approach: Defendant objects to this Request because it seeks confidential commercial information. Subject to and without waiving this objection, Defendant agrees to negotiate a confidentiality agreement and protective order with Plaintiff subject to which the requested confidential information might be produced.

§ 11.3.4 Duty to Supplement Requests Rule 26(e)(1) of the Rhode Island Superior Court Rules of Civil Procedure requires supplementation of previously complete responses to discovery. A party who has responded to a request for discovery with a response that was complete when made is under a duty to supplement the responses to include information thereafter acquired under the following circumstances: • A party is under duty seasonably to supplement his or her response with respect to any question directly addressed to (a) the identity and location of persons having any knowledge of discoverable matters, and (b) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person’s testimony. Super. R. Civ. P. 26(e)(1); • A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (a) the party knows that the response was incorrect when made, or (b) the party knows that the response though incorrect when made is no longer true or complete and the circumstances are such that a failure to amend the response is in substance a knowing concealment. Super. R. Civ. P. 26(e)(2);

11–29

§ 11.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• A party is under a continuing duty to furnish answers to interrogatories as provided in Rule 33(c) which, in turn, provides that if a party furnishing answers to interrogatories subsequently shall obtain information that renders such answers incomplete or incorrect, amended answers shall be served within a reasonable time thereafter. Amendments proposed less than thirty days before trial may be made only on motion and upon such terms as the court may direct. Super. R. Civ. P. 26(e)(4), 33(c). Although Rule 26(e)(1)(B) which requires disclosure of the substance of the expert’s testimony is mandatory, it is a good practice to remind your opponent of its duty to supplement at the close of discovery and, again, prior to the final pretrial conference. Your opponent, of course, will expect the same supplementation in return. Because Rule 26(e)(2) also requires a party to amend a response where the party learns that the prior response was incorrect when made or that the prior response, though correct when made, is no longer true and the failure to amend involves a knowing concealment, a court may impose sanctions in an egregious case where a party has repeatedly failed, without explanation, to supplement a previous document production that was incomplete when made. It is also within the court’s discretion to order preclusion of the materials or information that were not timely disclosed. Rhode Island’s Rule 26(e) is applicable to all methods of discovery and is a departure from the federal model because it retains the more demanding requirement applicable to answers to interrogatories found in Rule 33(c). Subdivision (f) imposes on those requesting discovery or responding thereto obligations analogous to the requirements of Rule 11. With respect to supplementation of other discovery, you may obtain supplementary responses only under the following circumstances: • by order of the court, • by agreement of the parties, or • at any time prior to trial through new requests for supplementation of prior responses. See Super. R. Civ. P. 26(e) & reporter’s notes. Rule 26(e) of the federal rules also requires timely supplementation of discovery responses. Specifically, the Rule requires supplementation of all of the party’s automatic disclosures under Rule 26(a) as well as amendment of “a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect.”

11–30

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

EXHIBIT 11A—Sample Request for Production of Documents STATE OF RHODE ISLAND PROVIDENCE, SC

PLAINTIFF CORPORATION Plaintiff, v. DEFENDANT CORPORATION Defendant.

SUPERIOR COURT

) ) ) ) ) ) ) ) ) ) )

C.A.NO.PC09-1111

PLAINTIFF CORPORATION’S FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT CORPORATION You are hereby requested to produce in accordance with Rule 34 the Rhode Island Superior Court Rules of Civil Procedure the following documents to be mailed to the offices of LAW FIRM NAME, ADDRESS, within FORTY (40) days from the date of service hereof. If the defendant withholds any documents in response to this request on the basis of any privilege, please identify each such document by author, recipient, date, title, type of document (e.g. memorandum, letter, etc.) and its general matter. In addition, please state the nature of and basis for any claimed privilege or exemption. Furthermore, If any document responsive to a Request for Production was, but no longer is, in your possession, custody or control, please identify that document and state whether any such document (i) is missing or lost; (ii) has been destroyed; (iii) has been transferred voluntarily or involuntarily; or (iv) has been otherwise disposed of, and, in each instance, please explain in detail the circumstances surrounding any such disposition. DOCUMENTS REQUESTED 1.

All documents referring or relating to the drafting and negotiation of the Contract.

2.

All documents referring or relating to the Project. 11–31

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

3.

All documents referring or relating to Plaintiff.

4.

All documents relating to or evidencing any payments made by the Defendant to Plaintiff.

5.

All documents referring to, relating to or constituting any communications of any nature between the Defendant and Non-Party Consultants, Inc. or any of its representatives, agents or employees.

6.

All documents referring or relating to Plaintiff’s constructive termination of the Contract in March 2002.

7.

All meeting notes, whether handwritten or otherwise, relating to the Project.

8.

All communications, correspondence, notes of telephone calls, or other documents of any kind reflecting communication referring or relating to the Project with any person.

9.

All documents you have received from Plaintiff relating to this Project from 1998 to the present.

10. All documents referring to, relating to or constituting records and daily job reports and logs regarding the Project. 11. All documents referring to, relating to or constituting communications between the Defendant and Ms. Outside Consultant regarding the Project. 12. All documents which you refer to or identify in your answers to Plaintiff’s First Set of Interrogatories. 13. All documents upon which you relied in preparing your Answer to the Complaint in this action. 14. All documents which you intend to introduce as evidence at the trial of this action. PLAINTIFF CORPORATION, By its attorney,

DATED: May

11–32

, 2002

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

EXHIBIT 11B—Sample Response to Request for Production of Documents STATE OF RHODE ISLAND PROVIDENCE, SC

PLAINTIFF CORPORATION Plaintiff, v. DEFENDANT CORPORATION Defendant.

SUPERIOR COURT

) ) ) ) ) ) ) ) ) ) )

C.A.NO.PC09-1111

PLAINTIFF CORPORATION’S RESPONSE TO DEFENDANT CORPORATION’S FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS OBJECTIONS TO DEFENDANT’S REQUESTS FOR PRODUCTION OF DOCUMENTS 1.

All documents which in any manner memorialize, mention, relate to or refer to the Contract between Plaintiff and Defendant which forms the basis of the plaintiff’s complaint. RESPONSE: Objection. Seeks documents protected by the attorneyclient privilege. With respect to privileged documentation, the defendant provides the attached privilege log which contains the factual and legal basis for this objection with respect to: “Statement of Employee I” taken by my insurance company on May 2, 2009, in anticipation of litigation; Incident Report of March 11, 2009, prepared by defendant in anticipation of litigation. Defendant’s attorneys are in possession of the privileged documents. With respect to nonprivileged documents, see contract documents attached hereto as Exhibit A. Furthermore, the defendant’s entire Project File is available for inspection at defense counsel’s office or copying at plaintiff’s expense. 11–33

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

No other responsive documents or materials are in existence. 2.

All documents which in any manner memorialize, mention, relate to or refer to the work which was to be done by Plaintiff pursuant to the Contract which forms the basis of the plaintiff’s complaint. RESPONSE: Objection. Seeks documents protected by the attorneyclient privilege. With respect to privileged documentation, the defendant provides the attached privilege log which contains the factual and legal basis for this objection with respect to: “Statement of Employee I” taken in anticipation of litigation on May 2, 2009; Incident Report of March 11, 2009, prepared by Employee I in anticipation of litigation. Defendant’s attorneys are in possession of the privileged documents. With respect to nonprivileged documents, the defendant’s entire Project File is available for inspection at defense counsel’s office or copying at plaintiff’s expense. No other responsive documents or materials are in existence.

3.

All documents referring or relating to Plaintiff. RESPONSE: Objection. Seeks documents protected by the attorneyclient privilege. With respect to privileged documentation, the defendant provides the attached privilege log which contains the factual and legal basis for this objection with respect to: “Statement of Employee I” taken in anticipation of litigation on May 2, 2009; Incident Report of March 11, 2009, prepared by Employee I in anticipation of litigation. Defendant’s attorneys are in possession of the privileged documents. With respect to nonprivileged documents, the defendant’s entire Project File is available for inspection at defense counsel’s office or copying at plaintiff’s expense. No other responsive documents or materials are in existence.

4.

All documents relating to or evidencing any payments made by the Defendant to Plaintiff. RESPONSE: See Invoices attached hereto as Exhibit B.

5.

All documents referring to, relating to or constituting any communications of any nature between the Defendant and Non-Party Consultants, Inc. or any of its representatives, agents or employees.

11–34

REQUESTS FOR DOCUMENTS, THINGS, AND LAND ENTRY

RESPONSE: See Report attached hereto as Exhibit C. 6.

All documents referring or relating to Plaintiff’s constructive termination of the Contract in March 2002. RESPONSE: See Letter attached hereto as Exhibit D.

7.

All meeting notes, whether handwritten or otherwise, relating to the Project. RESPONSE: The defendant’s entire Project File is available for inspection at defense counsel’s office or copying at plaintiff’s expense.

8.

All communications, correspondence, notes of telephone calls, or other documents of any kind reflecting communication referring or relating to the Project with any person. RESPONSE: Objection. Seeks documents protected by the attorneyclient privilege. With respect to privileged documentation, the defendant provides the attached privilege log which contains the factual and legal basis of this objection with respect to: “Statement of Employee I” taken in anticipation of litigation on May 2, 2009; Incident Report of March 11, 2009, prepared by Employee I in anticipation of litigation. Defendant’s attorneys are in possession of the privileged documents. With respect to nonprivileged documents, the defendant’s entire Project File is available for inspection at defense counsel’s office or copying at plaintiff’s expense. No other responsive documents or materials are in existence.

9.

All documents you have received from Plaintiff relating to this Project from 1998 to the present. RESPONSE: See Letter attached as Exhibit C and Emails attached as Exhibit E.

10. All documents referring to, relating to or constituting records and daily job reports and logs regarding the Project. RESPONSE: The defendant’s entire Project File is available for inspection at defense counsel’s office or copying at plaintiff’s expense. 11. All documents referring to, relating to or constituting communications between the Defendant and Ms. Outside Consultant regarding the Project.

11–35

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

RESPONSE: See Report II attached as Exhibit F. 12. All documents which you refer to or identify in your answers to Plaintiff’s First Set of Interrogatories. RESPONSE: Objection. Seeks documents protected by the attorney work product privilege. The defendant provides the attached privilege log which contains the factual and legal basis of this objection with respect to: “Statement of Employee I” taken in anticipation of litigation on May 2, 2009. Defendant’s attorneys are in possession of the Statement. With respect to nonprivileged documents, see Exhibits C, D, and F. No other responsive documents or materials are in existence. 13. All documents upon which you relied in preparing your Answer to the Complaint in this action. RESPONSE: None. 14. All documents which you intend to introduce as evidence at the trial of this action. RESPONSE: This request seeks documents and other materials protected by the work-product doctrine. A privilege log is not provided for the reason that the request is improper on its face and to provide a privilege log identifying these documents would require disclosure of counsel’s mental impressions and thought processes having to do with trial preparation, strategy, and proof. PLAINTIFF CORPORATION, By its attorney,

11–36

CHAPTER 12

Organizing Documents Identified During Discovery; Document Management by Going Paperless Timothy J. Conlon Laura C. Harrington § 12.1

Organizing Documents Identified During Discovery ...... 12–1 § 12.1.1

Introduction ......................................................... 12–1

§ 12.1.2

The Pretrial Conference ...................................... 12–2

§ 12.1.3

Organizing Responses to Interrogatories and Requests for Production ............................... 12–3

§ 12.1.4

Paginating Documents Produced and Received .. 12–4

§ 12.1.5

Medical Records.................................................. 12–4

§ 12.1.6

Chronology.......................................................... 12–5

§ 12.1.7

Deposition ........................................................... 12–7

§ 12.1.8

Organizing for Experts ........................................ 12–8

§ 12.1.9

Organizing for Trial............................................. 12–9

§ 12.1.10 Conclusion ........................................................ 12–10 § 12.2

Going Paperless ................................................................ 12–10 § 12.2.1

Pick a Date ........................................................ 12–13

§ 12.2.2

Get a Scanner .................................................... 12–13

§ 12.2.3

Get Hard Disk Space......................................... 12–14

§ 12.2.4

Automatically Back Up Hard Drive .................. 12–14

§ 12.2.5

Set Up A–Z Folders on Server .......................... 12–14

§ 12.2.6

Migrate Existing Folders and Documents ......... 12–14 12–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 12.2.7

Create Naming Structure for New Files.............12–15

§ 12.2.8

Get “Banker’s” Boxes and Tabs.........................12–17

§ 12.2.9

Review New Procedures with Staff....................12–18

§ 12.2.10 Check Your Files ................................................12–19 § 12.2.11 Establish End-of-Day Routine ...........................12–19 § 12.2.12 Start a New Box .................................................12–19

12–ii

CHAPTER 12

Organizing Documents Identified During Discovery; Document Management by Going Paperless* Timothy J. Conlon Laura C. Harrington

Scope Note This chapter is an introduction to the ways in which documents can be managed and organized at different stages of the litigation process, with a focus on cases being tried in Rhode Island Superior Court. As most attorneys in Rhode Island practice in firms with five or fewer lawyers, the focus of the chapter is on the types of cases the average small firm will handle. The chapter begins with a discussion of the use of a pretrial conference scheduling order. The chapter then discusses how to collate and organize discovery once received for use with expert witnesses, at deposition, and at trial. The chapter concludes with a section on the use of technology that enables any size law firm, including solo practitioners, to increase efficiency in the small office.

§ 12.1

ORGANIZING DOCUMENTS IDENTIFIED DURING DISCOVERY

§ 12.1.1 Introduction In order for the small to medium size law office to efficiently manage litigation, the office must have a template for the organization of discovery that overlays *

Timothy J. Conlon, Esq., authored § 12.2 of this chapter.

12–1

§ 12.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

each case. This chapter details several different types of cases and provides suggestions for managing discovery. Since each case is unique the template may have to be altered to meet the needs of the individual case, however, having an explicit process will allow support staff to efficiently operate with less supervision of routine tasks and enable the litigation to proceed in a timely manner. The chapter concludes with suggestions on using technology to improve efficiency and client satisfaction.

§ 12.1.2 The Pretrial Conference The most important tool in organizing discovery is the scheduling order. In Rhode Island state court this can be obtained by motion of either party for a Rule 16 conference. Rule 16 allows for the parties to appear before the court for a conference to consider simplification of issues, amendment of pleadings, if necessary; possibility of obtaining admissions of fact and of documents and limitations on the number of expert witnesses. The rule requires that an order shall be entered which recites the action taken at the conference. This conference allows the parties to plan the pace of discovery and forces both sides to provide timely production. While overdue interrogatories or responses to a request for production will bring about a motion to compel, failure to comply with the scheduling order can result in a contempt motion, the granting of attorney’s fees and costs and the preclusion of evidence at trial for failure to timely produce and comply with the scheduling order. Typically the motion alone, by either party, will result in an agreed upon schedule. If the parties cannot agree, most Superior Court judges in Rhode Island are extremely willing to assist the parties in reaching an agreement. Practice Note At times, less experienced members of the bar will be sent to represent a party at these conferences. If the attorney lacks knowledge of the client’s ability to assist in production and does not have the experience to accurately estimate the time required to comply with the discovery requests likely to made, the attorney could be committing to a schedule that is unrealistic and that could result in sanctions and an increase in client expenses.

The pretrial conference is a time to meet with the other side and often obtain a sense of opposing counsel’s strategy in litigating the case. In all of the counties except Providence, there is a good possibility, depending on the time it takes to complete discovery, that the judge conducting the conference will also be the judge who presides at the trial. Both parties should be prepared with a proposed 12–2

ORGANIZING DOCUMENTS; GOING PAPERLESS

§ 12.1

scheduling order, that takes into account the schedule of any expert witnesses or critical lay witnesses and the schedule of the attorney who will actually be trying the case. Counsel should also be prepared to present a succinct and meaningful explanation of the case so that the judge can assist the parties as discovery is ongoing. The judge will often use information provided at the conference as background when determining future motions.

§ 12.1.3 Organizing Responses to Interrogatories and Requests for Production A previous chapter in this volume has addressed the issues of interrogatories and request for production. This section addresses what to do with the discovery once it is received. The first and most important step in organizing the discovery is to have someone familiar with the case, who understands what evidence will be required to prove or disprove the elements of each claim at trial, review the responses. In order to organize the material received the practitioner must review the request initially propounded and compare it with the answers and documents actually produced. Opposing counsel may fail to provide a complete response, without so indicating. For example, if thirty policies are specifically requested by name after review of the index of a policy manual, opposing counsel may only produce twenty-eight of the policies, without indicating that the additional two policies are not provided. Only by comparing the original request with opposing counsel’s production can a practitioner confirm that all of the interrogatories posed and documents requested have been responded to in their entirety. Original signed interrogatories should be saved in their paper form. These will be used at deposition and at trial. Since the June 15, 2006, amendment to Rule 5 of the Superior Court Rules of Civil Procedure, discovery requests and responses shall not be filed with the court until they are used in the proceeding or the court orders their filing. Motions to compel further answers to interrogatories should be grouped with the original request (either in paper or scanned form) and reminders should be calendared to follow up on incomplete answers. These reminders should remain open until the practitioner is satisfied that full disclosure has occurred. If certain interrogatories are answered with what essentially amounts to a “not yet determined” status, (which often occurs early on in a case particularly with respect to interrogatories requesting information about expert witnesses and learned treatises) the practitioner must diary dates for follow up that are consistent with the pretrial scheduling order. This follow up is crucial as in order for any organization to be meaningful it must contain all of the necessary documents. 12–3

§ 12.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 12.1.4 Paginating Documents Produced and Received Paginating records produced is a relatively simple matter if the attorney’s office has gone paperless as described below. Each page of the previously scanned documents can be printed with the pagination inserted by the computer. If documents are not scanned and printed, a Bates stamper can be used. Judges, particularly those sitting on the civil motion calendar, find pagination useful in creating an accurate record. Thus, rather than referencing “the third page from the back,” the court and the attorneys, during argument, can quickly direct the judge to the disputed text and accurately describe the text for the stenographer. Further, as most discovery is no longer produced to the court, an accurate way to track that all the documents intended to be produced were in fact produced is to review the pagination of the discovery provided.

§ 12.1.5 Medical Records Nearly all attorneys are required to work with medical records and this section will focus on organizing medical records including ways to ensure that all of the records have been obtained, summarizing the records and indexing the records in a format that is familiar to medical providers who will be reviewing and/or testifying about the record. The simplest way to ensure the medical record is complete is to have a medical professional familiar with the type of treatment rendered review the record. This can be expensive and every case may not merit this type of review. Practitioners who are familiar with medical terminology can review the record themselves, using the attached sample indexes for hospital and medical office records as a template to ensure that record was produced in its entirety. With respect to hospital admission records, look for a break in the dates of progress notes, indicating some notes are missing. Typically, hospitalized patients are charted on daily. Often, when copying, the institution fails to copy both sides of a page or pages stick together, resulting in inadvertent production of an incomplete record. The omitted pages may be of critical importance to a case. Simply taking note of indicators of page numbers generated from the health care institution often triggers a request for additional records. For example, complete laboratory test results are frequently printed out at the conclusion of a patient’s hospital admission. These pages are often numbered 1 of 23, 2 of 23, etc. It is a simple matter to check to ensure that all twenty-three pages are present.

12–4

ORGANIZING DOCUMENTS; GOING PAPERLESS

§ 12.1

Certain sections are present in nearly all hospital records for patients who are admitted as inpatients (as distinguished from patients treated and discharged from the emergency department without hospital admission). These include: a history and physical, a discharge summary, physician progress notes, nursing progress notes (some institutions combine these two sections), a medication administration record, radiology studies and laboratory results. Once a complete set of records is obtained, paginate them and provided a paginated copy to opposing counsel in discovery. Often, the record organized as described, is the simplest to use and becomes the record for use at trial. Thus, if you are the one producing the best organized record, your record, with which you will be the most familiar, will be the record used at trial.

§ 12.1.6 Chronology No matter what the phase of litigation, in any case involving extensive records of events that occurred over a period of time, such as a medical malpractice, construction litigation, employment discrimination or a motor vehicle accident in which there are substantial treatment records, a chronology of the records is invaluable in organizing the documents to be used at trial. Chronologies can be time consuming and extremely detail oriented. However, if there are only a few specific entries that are central to the case, the rest of the documents can be briefly summarized to give a sense of the condition of the patient or the construction or the employee, before, during and after the events at issue in the case. For example, in a case involving alleged anesthesia negligence in the operating room, the pre-operative and post-discharge chronology entries may be more general, but the actual operating room chronology may be minute by minute. In most cases, getting a rough outline of events on the page will assist the practitioner in seeing what the documents show about how the events played out. As juries will attach much greater weight to contemporaneous documents created before litigation began than they will to the parties recollection at time of trial, it is important that the practitioner be aware not just of his or her client’s version of events, but what the documents reveal. A simple chronology format for a car accident case that occurred on is outlined below: Jane Doe, Plaintiff Date of Injury: August 5, 2004 Date of surgery: January 6, 2006

12–5

§ 12.1

May 1, 2000

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Dr. Joe Smith, Primary Care provider Routine physical, no complaints, blood work normal

September 28, 2001 Dr. Mary Jones, GYN Routine screen, lab tests normal April 20, 2002

Dr. Joe Smith, PCP Pt complains of left ear pain and pressure, antibiotics prescribed

February 4, 2004

Rhode Island Hospital, Emergency Department Client restrained driver in head on collision, seat belt on, c/o head and neck pain; x-rays normal, discharged home with Motrin, to follow up with primary care doctor

February 5, 2004

Dr. Joe Smith Pt in car accident yesterday, reports worsening neck pain encouraged rest and use of anti-inflammatory medication and ice

March 3, 2004

Dr. Joe Smith Patient complaining of ongoing neck pain and numbness down left arm, MRI ordered of cervical spine

March 7, 2004

Rhode Island Imaging Cervical spine MRI—disc protrusion noted at C4-C5, bulge at C5-C6

March 20, 2004

Dr. Smith MRI reviewed pt referred for physical therapy

April 15, 2004 thru July 30

Physical Therapy Physical therapy 3x/week, increased pain after some sessions, tolerating well, some relief of symptoms

October 10, 2004

Dr. Smith Pt continues to complain of neck and arm pain, referral made to neurosurgeon

November 1, 2004

Dr. Jones, Neurosurgery Films reviewed, pt reports ongoing pain, surgery recommended

12–6

ORGANIZING DOCUMENTS; GOING PAPERLESS

January 6, 2005 to January 12

§ 12.1

ABC Hospital Patient undergoes laminectomy of C4-5, difficulty with post-operative pain management, fevers on Day 3 of hospitalization, discharged home with visiting nurses

In this sample chronology, by obtaining and including medical treatment records from prior to the event at issue the practitioner can see if there were pre-existing conditions that might explain the plaintiff’s subsequent outcome. By including the date of injury and dates of surgeries at the start of the chronology, the practitioner has a quick reference for key dates in the case. The chronology may or may not be provided to a party’s expert witnesses. As long as the expert does not rely on the chronology in forming his or her expert opinion then the chronology should be protected as attorney work product. See Henderson v. Newport County YMCA, 966 A.2d 1242 (R.I. 2009) for a good discussion of the work product protection offered depending on the type of work product. A good practice is to provide the records to an expert, allow the expert to formulate his or her opinion and then, use the chronology as a tool, once opinions have been formed, to refresh the expert prior to deposition or trial.

§ 12.1.7 Deposition Prior to the deposition of a party, review the discovery produced to that point including the party’s answers to interrogatories and responses to requests for production. There will almost always be a document or interrogatory response that the deposing attorney does not recall that will be useful during the deposition. Identify the documents that will be the focus of your questioning. In a medical malpractice case this will often include medical records. If there are several providers and the notes in the medical chart are unclear, then provide the witness with a complete copy of the record and a yellow highlighter and ask the witness to highlight every entry personally made by him or her. Have this copy of the record marked and at trial, should there be any “confusion” over who made certain notes, the exhibit attached to the deposition can be used to resolve the issue. If certain entries or documents are going to be the focus of extensive questioning, have copies made for the deponent. If the deposition takes place in the setting of multiparty litigation, and several attorneys are present, there is no requirement that a copy of the deposition exhibits, which have presumably already been produced to each party, be provided to anyone but the witness.

12–7

§ 12.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

In order to reduce confusion and provide the cleanest deposition transcript for use at trial, take the page or pages of documents that you will be focusing on and number each line. Provide a copy of this document with each line numbered to the witness. Mark this copy as the exhibit indicating on the record that you have added the line numbers for clarity. Reference text during the deposition using the page number and the line number. This will allow for easier questioning of the witness as he or she will not spend time reading text that is not the subject of the deposition question. In addition to adding line numbers to documents, quickly and easily done by hand, documents can be enlarged. For example, in a contract case where the text is small and crowded, enlarge the document so that it is easier to read. Or, if questioning is around a handwritten document, often enlarging the note will allow for easier reading and a more efficient deposition. Once the deposition has been read and signed by the witness compare the errata sheet with the original deposition. This will allow time for follow up of any changes made and allow for the incorporation of the information from the errata sheet into the practitioners trial plan.

§ 12.1.8 Organizing for Experts Depending on the type of case and type of experts, documents should be produced in a manner familiar to the expert. In the case of healthcare witnesses, using an index similar to that followed in most hospitals will allow the expert to move efficiently through the record. This will also prompt the practitioner to follow up on missing medical records, as often charts are not produced in their entirety, no matter what the wording of the records requests. Following are sample outlines of an index of which can be used for medical records from the hospital setting: 1.

Admission Paperwork/Consents

2.

Discharge Summary

3.

EMS Run Sheet

4.

ED Records

5.

History and Physical

6.

Progress Notes

7.

Consultations

12–8

ORGANIZING DOCUMENTS; GOING PAPERLESS

8.

OR Reports

9.

OR Records

§ 12.1

10. Endoscopy Records 11. Physician Order Sheets 12. Laboratory Sheets 13. Radiology Reports 14. EKGs/Cardiac Testing 15. Medication Administration Record 16. Nurse’s Notes 17. Care Plans 18. Nutrition Records 19. Discharge Instructions

§ 12.1.9 Organizing for Trial Prior to trial, if the above steps are followed, the case file should be well organized. However, by the time of trial the issues should be narrowed to the point that much of the file can be set aside and the remaining documents organized in a manner that will enable for ease of use at trial. Although not required by the Rhode Island Superior Court Rules of Civil Procedure, preparation of a pretrial memorandum is helpful both to the attorney and the court. The pretrial memorandum allows the attorney to spell out her case, and while doing so, forces the trial attorney to focus on the documents necessary for trial to prove that case. The pretrial memorandum also familiarizes the court with the names of the parties, the witnesses and the main issues in the case. Providing the judge with an indexed binder of the depositions in mini-transcript format (four pages per page) will also allow for smoother questioning of witnesses and impeachment using depositions. The judge can follow along in her copy rather than stopping the proceedings so the judge can read from either the attorney’s copy or the original. The entire file should be re-read four to six weeks before trial. Documents received earlier in the discovery process may appear in a different light at the end 12–9

§ 12.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

of discovery. None of the file should be discarded after reading, but rather, the documents necessary for trial should be extracted and re-organized. Legal office supply companies sell trial binders with pre-made tabs. These may be useful, but any type of binder can be modified and tabbed to suit the needs of the case. The following documents are recommended to be included in the trial binder: • the complaint and answer of each defendant, • the interrogatories of every party, • the pretrial memo, • the documents selected for use at trial, and • motions in limine. Put the depositions, along with their summaries in a separate binder, leave the sealed original copies of depositions in a container to produce to the witness and the court at trial.

§ 12.1.10 Conclusion While each case is unique in that it presents its own combination of depositions, documents, expert testimony, and other elements of the trial notebook, there are certain commonalities in every trial that suggest a template for the lawyer who is preparing for trial. From the time of the pretrial conference up until the final steps before trial, having a plan for organizing discovery plays a large part in a lawyer’s success. Having a delineated process in place prior to the start of trial gives the attorney a set of steps to follow during a hectic pretrial period. Having a formalized process for organizing documents will also ensure that the necessary evidence to prove or disprove the elements of the case is organized and available.

§ 12.2

GOING PAPERLESS

Before we cover how to “go paperless,” let’s cover why. Sure it sounds high tech, but the paperless office is not just a dream—nor a luxury reserved for wellheeled, big firms. In fact, the best reason to go paperless is one relevant to most small firms: it saves money. For most firms, the single largest expense is personnel. Of course, you need legal assistants and paralegals, but the cost of payroll and benefits likely takes a bigger chunk out of your monthly cash flow than any other expense. So ask yourself 12–10

ORGANIZING DOCUMENTS; GOING PAPERLESS

§ 12.2

whether you can make more productive use of their time than paying them to feed a copier or to file documents. Why are there savings in filing and document management? Take a look at your “standard” hard-copy document management system. First, someone opens and date stamps the mail. Then they either route the original to the appropriate person (and assume it gets in the file—a very risky assumption) or they make a copy for that person (or copies for those persons) and put the original in the file, ideally right away. If the original is handed off, someone else may well copy it before it goes into the file, lest the original sits on the attorney’s desk, or winds up in a briefcase. Of course, you may need a copy for the client, and one for a folder in which a draft response sits while it is being prepared. Then there is the copy that is made for the hearing or meeting. There are many steps just to get the document in circulation. And still there is more. Each time someone needs a copy of the document in the future, someone you are paying has to do the following: • get up, • find the file, • find the original in the file, • remove the original, • copy the original, • (ideally) replace the original, and finally • replace the file. If at any point in this process someone misplaces the original, or worse, the file, more staff is recruited to find the document or find the file. Even if you just want to look at the document, you still have to perform half of the steps listed above. This is your money going down the drain. The author went paperless when he had two full-time staff and one part-time file clerk, and he estimated that almost one-third of their time collectively (and therefore one-third of his total payroll) was spent either filing or retrieving documents. Take a look around your office, and ask how much time is spent putting documents into files, getting documents out of files, finding documents,

12–11

§ 12.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

copying or recopying original documents, and distributing documents. If it is even 20 percent of your staff’s time, take a look at your payroll, and do the math. This is how e-filing saves time and money. Review the workflow described above, but assume that an e-filing system is used. When the mail comes in, someone date stamps it, just as in the system above, and in exactly the time it takes to make the copy they made under the old system (indeed perhaps while making a copy), scans the document. They then file the scan in the computer (more to follow below), which takes seconds. Staff can either e-mail the image or print a copy for distribution. In about the time the first step in the paper-based system was accomplished, the work of the paperless system is done. If you need to send a copy of the document to the client, an e-mail will take seconds, with no toner, letterhead, envelope, or postage. Leave aside the cost of the paper, copies, and postage and ask how much time is spent making the copy, printing the cover letter, stuffing the envelope, posting it, and mailing it, and if you need a copy six months later, you open the case file in the computer from your desktop, or from home via remote access, without getting up or bothering anyone. Read it on screen, or if need be, print it. When you are done with the document, toss it in the shredder. The cost of disk space today is negligible. The author has all the documents that have come into his office in the last decade online, using drive space that costs under $700, including backups. Today’s prices are even more economical. When you evaluate the personnel savings, you will realize that it just doesn’t make economic sense to do paper filing—anymore than it makes sense to use carbon paper. A number of jurisdictions have explicitly approved electronic files for lawyers. See, e.g., Va. St. Bar Standing Comm. on Legal Ethics, Op. 1818 (Sept. 3, 2005) (attorney may maintain exclusively electronic files, destroying original documents other than deeds and the like with client consent); Fla. Bar Prof’l Ethics Comm., Op. 06-1; Me. Op. 183 (Jan. 28, 2004). Of course, the duty to protect confidentiality extends to an electronic filing system, whether on a shared local network, Mo. Bar, Informal Advisory Op. 980030 (lawyers sharing a computer network must block access to client files), or a remote server. See N.J. Sup. Ct. Ethics Comm. on Prof’l Ethics Op. 701 (Apr. 10, 2006) (attorney may maintain client files electronically with a third party if there is an enforceable obligation to preserve security of those files). Nev. St. Bar Standing Comm. on Ethics and Prof’l Resp. Formal Op. 33 (Feb. 9, 2006) (firm may, without client consent, store electronic client files on third-party remote servers as long as firm uses reasonable care to protect client files).

12–12

ORGANIZING DOCUMENTS; GOING PAPERLESS

§ 12.2

Indeed, as more of your file becomes electronic, you may have ethical obligations to retain e-mails and e-docs for the client. See Ass’n Bar NYC, Formal Op. 2008-1. If you are ready to go paperless, following is a way to transition without chaos. The often-heard closely related question is “How do I get all my existing files online?” The following sections walk you through a simple, orderly process that will get you online quickly and without chaos. The trick is to abandon the idea of chewing through the backlog of existing files and documents, and put time on your side. Here, in twelve steps, is how.

§ 12.2.1 Pick a Date Pick a date to abandon paper filing. Make it at least thirty days in advance. The first of the month following next month is a good date to choose, because that gives you plenty of time to get everything in place and get staff up to speed. The efficiencies of a system such as the one just described are only there if people know how to use it, and use it in a consistent fashion. Just “throwing” all your documents in the computer doesn’t help you find things, and it really doesn’t take extra time to put everything in the “right” place electronically. Let’s first make sure we understand where the “right” place is, and how to get documents there.

§ 12.2.2 Get a Scanner Make sure you have a dependable, high-speed (twenty-four pages per minute or better) scanner that doesn’t jam—and that your staff knows how to use it. The first part is easy, as your copier almost certainly scans as well as copies. The trick is that many offices have little idea how to make the scanning function work. Break out the manual or call the vendor who sold it to you, and get it to the point that it can easily scan and save to disk (presumably on a server) in pdf format. Most multifunction machines have programmable preset buttons that can be configured to scan a document to a specified format (pdf) at a specified resolution (200 or 300 dpi), and store it in a designated folder. In many instances, you can combine scanning and copying (or printing the scan) on the same preset button, which means that a hard copy for distribution can be produced at the point where the initial scan is made, all in one step.

12–13

§ 12.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 12.2.3 Get Hard Disk Space Make sure you have hard disk space (the author uses 84 gigabytes of a 124gigabyte drive) available, preferably on a server. As mentioned above, the cost of hard disk space is very low. It is not recommended that you share the drive that you are going to use for your electronic case files with other computer files. You can add an external firewire drive from your server, or you can install an extra drive into your server. One way or the other, it is best to have a single large drive that is capable of handling many years of documents. By centralizing electronic filing, you have but one place to look for any document, one place to secure, and one place to back up, which is discussed next.

§ 12.2.4 Automatically Back Up Hard Drive Make sure the hard drive is automatically backed up. Since the cost of disk space is low, get four drives. First, there is the one you installed (whether internally or externally) to hold the documents. That drive should be moderately quick, which is why firewire, or an internal drive, were mentioned above. Next, there are three generations of backup drives. These can be less expensive USB drives. You back up the document server to one drive, then the second (making the first the “father”), and finally to the third, which in turn becomes the “son.” Ideally, the oldest generation is stored off-site.

§ 12.2.5 Set Up A–Z Folders on Server Since most of us file alphabetically, by client name, set up a series of folders on the disk, one for each letter of the alphabet. You will find it much easier to open the alphabetical folders and find the file you need without having to swim through the sea of files that would result if all the client files were just thrown on the disk. Make sure the individual file folders you created and any files put in them are accessible to staff across your network. Have them create a couple of dummy files, and make sure everyone can “see” everything.

§ 12.2.6 Migrate Existing Folders and Documents Migrate your existing client folders and documents into the alphabetical folders, with one folder per client, named “Lastname, Firstname.” First, document a filing organization standard within the client file. The following is an example: • Pleadings (or Projects, if you have a transaction-based practice)

12–14

ORGANIZING DOCUMENTS; GOING PAPERLESS

–

§ 12.2

Separate Pleadings folders within Pleadings if the client has more than one case, or separate transaction folders if there is more than one deal

• Correspondence • Drafts • Records • Notes (for handwritten notes and the like) • Billings and Costs • Preconversion documents Circulate a draft file organization standard, and get staff feedback. Once it is agreed upon, circulate the “final” version, make a “template set” of empty folders for a new client template (a “NewClientLast, NewClientFirst,” folder, with empty folders named “Pleadings,” “Correspondence,” “Drafts,” etc., per your standard), and copy the template to set up files for each of the existing clients. Don’t bother to reorganize your existing docs; it will take forever. Just make sure there is a file for each active case. Once you have a file for each case, you can put any existing documents in the preconversion folder. Be aware that one of the pitfalls of many electronic filing “systems” in offices today is that there is no system at all, and documents are strewn about across multiple computers. Moving the files from the user machines to the server is the beginning of an effective file management strategy. Again, you want one place to look for documents, and one place to secure.

§ 12.2.7 Create Naming Structure for New Files Document a naming structure for the new files. The other common problem with systems that have just “evolved” is a lack of consistency in naming files. Does it seem picky to worry about whether you call a document a “Motion” or an “MTN?” How do you designate the date of the file? Is it “July 2 Letter to Jones,” or “Jones Ltr 07/02”? Why do you care? A year later, when you ask the computer to find a letter that went to Jones in July of ’09—you care. If half the letters are “Ltr’s,” you have to do two searches. If half the “July” documents are ’07, and half are “July,” you now have four searches. Just add one more variable and there are eight possible variations!

12–15

§ 12.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Going backwards to fix all the existing documents would take forever, and over time these documents will become a trivial minority. You can, however, spend about thirty minutes establishing an officewide naming convention that will be used going forward and will eliminate hours of searching for documents. You have to name a new file when you first save it, so make sure that everyone is clear on naming conventions going forward. Enforce the naming conventions, and with zero “extra” time, you will begin to build an organized catalog of electronic documents. In the author’s office, all letters are named as follows: “Letter to” or “Letter from” with the LAST NAME of the addressee (for “Letter to”) or author (for “Letter from”), followed by the DATE it was received or sent, in the following format: 090623. So a letter to Arthur Read sent on June 23, 2009 is named as follows: Letter to Read 090623 (probably followed by “.doc,” but the computer will handle that). If you open the folder, click on list view, and sort by name, the computer puts all the “Letter to so-and-so yymmdd” in order, by date. Of course, if you sort by date, you get something similar, but all the letters (to opposing counsel, to the client, or to the clerk) are intermingled. This is great if you are looking for your response to a given letter. First, find the “Letter from so-and-so,” then sort the list by date, and find the next several “Letter to so-and-so”s. The author does not use the last name of clients, as he does domestic work, and it would be easy to have letters from two people with the same last name in the same case, so correspondence to or from the client is delineated as follows: Letter from client 090623.pdf Fax to client 090623.doc This also makes it easy to segregate attorney-client communication. Pleadings are named by the formal name of the pleading and the date the pleading is served or received by the firm, as follows: Motion to NAME 090623 Objection 090623

12–16

ORGANIZING DOCUMENTS; GOING PAPERLESS

§ 12.2

Certified or entered copies of orders are designated with an (e) or (c), as follows: Order 090623 (c) This tells you that your original certified copy of the order is in the box for that date. The same goes for original documents of evidentiary value. If, for instance, you receive an original deed, it is scanned and put in the box by date, and the scan file is annotated to reflect this, as follows: Deed 090623 (o) If someone has to remove the document from the box, you can annotate the electronic file with the electronic equivalent of an “out card” stating who removed the document, and to where, in the “Get Info” window (Mac) or “Comment” box (File: Properties, in Windows). The author puts the word “Draft” in the title of a draft version of the document, and dates it only when it is circulated outside the office. This means versions that went to the client or the other side are readily available. All draft documents, whether undated works in progress or circulated drafts, are kept in the Draft folder, and not moved to Pleadings or Correspondence until they are in fact finalized and served, at which point the electronic version is renamed and moved. Other than calling a “Facsimile” a “Fax,” it is suggested that you do not use abbreviations. The problem with using abbreviations is that people are unlikely to do so consistently. Document your file-naming conventions, including any abbreviations, and distribute the naming structure to everyone.

§ 12.2.8 Get “Banker’s” Boxes and Tabs Get “banker’s” boxes and thirty-one tabs. There are plenty of variations on the letter-size box, in various degrees of sturdiness. For your purposes, a simple box will do. You can buy inexpensive boxes at Staples or any office supply shop for under $3 per box. (The author uses the Staples Economy 33250 box, which sells for $16.99 for a ten-pack.) You can get exhibit tabs or dividers, tabbed 1–31, for under $8 a set, and for as little as $2.50 per set if you go with uncoated paper. These go in the boxes, with each number representing a day of the month.

12–17

§ 12.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 12.2.9 Review New Procedures with Staff You may note that so far, we have done nothing about incoming documents, which are probably the documents that initially piqued your interest in the process. We will now address incoming documents, but in the meantime we have cleaned up inconsistencies in your document management system and organized your electronic files, work that pays off for your word processing system and gives you a solid foundation to build on. As to all that incoming paper, review the following with staff. On Day 1 (which should be about a week away), all incoming documents are date stamped on the top of the first page (you can write the date by hand in blue ink, if you don’t have a stamp) and scanned on receipt. If you are intending to distribute hard copies of the documents, program the scanner to print a copy at the same time it does the scan, and distribute the copy. The originals go in a “banker’s” box that has been labeled “Box 1, 091101 to - ” (assuming you start on November 1, 2009), behind the “1” Tab. The scan files get named according to the protocol described above, and go in the appropriate folders in the computer. If you need a hard copy of the document for a pending hearing or meeting, put a copy in the box in a colored folder (use one color for all your “hearing files” behind the tab with the appropriate date—so if there is a hearing on the twentieth, it is in a folder behind the “20.” Think about whether you really need a hard copy at all. If your electronic calendar allows you to link the document with the appointment, go ahead and link it. Many calendaring software packages allow you to open a document directly from a link in the calendar event, so you will have the document at your fingertips if you are at your computer for a meeting, or you can easily print it then if need be. When the attorney is done with the copy routed to him or her, he or she will shred it, or if it is needed for an event in the future, return the work copy to the box, to be inserted in a colored folder behind the tab for the date it is needed. Of course, if the copy is just “FYI,” or you want to skip paper entirely, you can simply e-mail the document to the lawyer when it is scanned and put on file. This works well when someone is out of the office and wants to monitor the mail. In effect, that person can be up to date within an hour of the receipt of mail, with no overnight mail or copying costs. Scan outgoing documents (the signed copy of a letter or pleading), and box and distribute them the same way. Do a “demo day” using all the mail on a given day in advance of your launch date, with all staff in attendance to address kinks in the process.

12–18

ORGANIZING DOCUMENTS; GOING PAPERLESS

§ 12.2

§ 12.2.10 Check Your Files Check your first couple of days by going through all the mail in the box, and comparing it with all the pdf’s in your computer. It is not as time-consuming as it may first seem. Search for your Day 1 date—in the example, “091101,” and the computer will promptly list all the files saved with names that contain that date. Print them, and make sure what you have matches what is in the box, behind Tab 1. Look at the file names and path to assure that they are all named and filed correctly. If there is a naming or filing error, it can be fixed in seconds. However, it is worth it to take the extra time to alert everyone that there was some confusion about the standard conventions, and update your protocol if need be. Check Tab 2’s documents against the computer’s “091102” files on Day 2. Going forward, check periodic days the same way for quality assurance purposes.

§ 12.2.11 Establish End-of-Day Routine At the end of the first day, and at the end of each day thereafter, adhere to the following procedure. Retrieve from the box the “work folders” for meetings and appearances the following day, and get a yellow folder for new documents received at court or at meetings. If a hearing or meeting is rescheduled, put the work folder in the new date. If you receive new documents out of the office, write the date received (for example, “091102”) in blue ink on the upper right corner, along with any special naming instructions, and place the document in the yellow folder. The yellow folder goes back with all new originals, which are then removed from the yellow folder and treated as new, incoming documents (which is what they are) and scanned, processed, and boxed, logged in as of the date of receipt. If the hearing is done, the documents in the work folder are shredded. If not, the work folder (into which printouts of any new documents from the yellow folder have been inserted) is boxed behind the tab for the next scheduled date. As Box 1 fills, move the “future” tabs into Box 2 (with an as-yetunlabeled start date) as needed to open space for the documents of the day in Box 1.

§ 12.2.12 Start a New Box When Box 1 is full, complete the label with the end date, so the start date and end date are on the box. If you haven’t already started Box 2 to house documents needed in the future, do so. You can now put an official start date on Box 2, as everything that comes in going forward (and hearing folders for events scheduled 12–19

§ 12.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

in the future) will go into this box. Repeat the process as you fill successive boxes. The author’s office keeps the “immediate term” boxes centrally located and immediately accessible. For the author, that is four stacks of four boxes, twelve or so that go back several months, and three or so that go forward with work copies for hearings. When you get past the point where you want to house these boxes in an accessible location, move the oldest boxes to on-site longerterm storage, if you have it available, or ship the oldest boxes to off-site storage. Depending on your on-site storage capabilities, you should have several months immediately at hand, and about a year’s worth of documents within easy reach. If you follow this process carefully, one year later, all your new files will be completely digital. In a couple of years, almost all your active files will be completely digital. Of course, you can choose to move selected existing files into your electronic filing system as you go forward, or when they are closed, as time permits.

12–20

CHAPTER 13

Depositions John S. Foley § 13.1

Introduction ........................................................................ 13–1

§ 13.2

Permissible Scope of Deposition Testimony ..................... 13–2 § 13.2.1

Scope and Limits of Deposition Discovery......... 13–2

§ 13.2.2

Depositions of Experts ........................................ 13–3

§ 13.2.3

Protective Orders................................................. 13–3

§ 13.3

Depositions to Perpetuate Testimony................................ 13–4

§ 13.4

Out-of-State Depositions.................................................... 13–5

§ 13.5

Persons Before Whom Depositions May Be Taken.......... 13–6

§ 13.6

Deposition Stipulations ...................................................... 13–6

§ 13.7

Deposition Procedure......................................................... 13–7 § 13.7.1

When Depositions May Be Taken....................... 13–7

§ 13.7.2

Notice of Examination ........................................ 13–7

§ 13.7.3

Attendance of the Witness and Others at Depositions...................................................... 13–8

§ 13.7.4

Methods of Recording Depositions..................... 13–9

§ 13.7.5

Production of Documents and Things at Depositions...................................................... 13–9

§ 13.7.6

Depositions of Organizations ............................ 13–10

§ 13.7.7

Telephonic or Remote Video Depositions ..........13–11

§ 13.7.8

Conduct of the Deposition: Examination and Cross-Examination ..................................... 13–12 (a)

Preliminary Statement.............................. 13–12 13–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 13.7.9

(b)

Examination and Cross-Examination .......13–13

(c)

Diagrammatic Testimony..........................13–13

(d)

Who May Attend Depositions...................13–14

(e)

Objections .................................................13–14

(f)

Protective Orders ......................................13–16

Reviewing, Changing, and Signing the Deposition ....................................................13–16

§ 13.8

Depositions Upon Written Questions ..............................13–17

§ 13.9

Use of Depositions in Court Proceedings ........................13–18 § 13.9.1

Use of Depositions of Parties.............................13–19

§ 13.9.2

Use of Depositions in Lieu of Live Testimony ..............................................13–20

§ 13.9.3

Rule of Completeness ........................................13–21

§ 13.9.4

Methods of Presenting Deposition Testimony...........................................................13–21

§ 13.9.5

Use of Depositions to Impeach with Prior Inconsistent Statements......................................13–22

§ 13.9.6

Effect of Errors or Irregularities in Depositions ....................................................13–24 (a)

Waiver of Errors, Irregularities, or Objections.............................................13–24

(b)

Objections That Are Preserved .................13–25

§ 13.10 Tactics and Techniques .....................................................13–26 § 13.10.1 Establish Clear Goals for Every Deposition ......13–26 § 13.10.2 Give the Witness Appropriate Directions at the Start of the Deposition .............................13–26 § 13.10.3 Exhaust the Witness’s Recollection on Each Important Point ..................................................13–27 § 13.10.4 Ask Good Questions ..........................................13–27 § 13.10.5 Use of Leading Questions..................................13–28 § 13.10.6 Listen to the Witness’s Answers.........................13–28 13–ii

DEPOSITIONS

§ 13.10.7 Repeat the Question Until the Witness Answers It ......................................................... 13–28 § 13.10.8 Do Not Argue with the Opposing Lawyer......... 13–29 § 13.10.9 Understand the Procedure for Marking Documents as Deposition Exhibits ................... 13–29 § 13.10.10 Have Realistic Goals When Deposing Experts ............................................. 13–30

13–iii

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

13–iv

CHAPTER 13

Depositions John S. Foley

Scope Note This chapter defines and deconstructs one of the fundamental elements of any discovery plan—the deposition. Beginning with the permissible scope of deposition testimony, the chapter goes on to discuss depositions taken out of state, as well as those taken to perpetuate testimony. It also contains a description of the structure of a deposition, and effective tactics for taking depositions.

§ 13.1

INTRODUCTION

Depositions are a common, but arguably the most important, discovery tool. In most cases, a deposition is the first and only time prior to trial that an attorney will have the opportunity to question the adverse party face to face. Every litigator must have a thorough grasp of the provisions of the Superior Court Rules of Civil Procedure and relevant statutes regarding the mechanics of taking and using depositions, as well as a clear understanding of the particular goals of each deposition and the tactics and techniques necessary to accomplish those goals. Prior to the adoption of the Superior Court Rules of Civil Procedure in 1966, the conduct and use of depositions was governed by the provisions of Chapter 18 of Title 9 of the General Laws. While the Superior Court Rules of Civil Procedure have largely superseded the statutory provisions, practitioners should continue to consult the statutes for aspects of deposition practice that are not covered by the Rules of Civil Procedure. For example, the conduct of depositions taken out of state for use in Rhode Island is governed by R.I. Gen. Laws § 9-18-5, and the manner of perpetuating testimony by deposition prior to the filing of a civil action is controlled by R.I. Gen. Laws § 9-18-12. Many skillful and experienced litigators have written volumes on the tactics and techniques of questioning witnesses at depositions, and an extensive treatment of those topics is beyond the scope of this chapter. A good starting point for those interested in additional reading on deposition tactics and techniques is D. Malone,

13–1

§ 13.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

P. Hoffman, and A. Bocchino, The Effective Deposition (3rd ed. 2007), available from the National Institute of Trial Advocacy. This chapter will focus on the rules governing when and how depositions are taken and how they may be used at trial.

§ 13.2

PERMISSIBLE SCOPE OF DEPOSITION TESTIMONY

§ 13.2.1 Scope and Limits of Deposition Discovery The familiar definition in Rule 26(b)(1) of the permissible scope of discovery applies to depositions: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Thus, as long as the questioning at a deposition “appears reasonably calculated to lead to the discovery of admissible evidence,” the questioning is proper. Rhode Island procedural rules place no express numerical limit on the number of depositions that may be taken in any one case. Under Rule 26(b)(1), the number of depositions taken by a party in any given case may be limited by the court if the court determines that the proposed depositions are cumulative or duplicative, or that the party conducting them is causing undue burden or expense. If you believe your opponent is conducting cumulative or burdensome depositions, you should attempt to resolve the issue with opposing counsel and, if that is not successful, file a motion for protective order under Rule 26(c).

13–2

DEPOSITIONS

§ 13.2

§ 13.2.2 Depositions of Experts The subject of deposing expert witnesses is covered in detail elsewhere in this volume, and so will receive only summary treatment here. Rule 26(b)(4)(A) permits a party to depose experts who have been identified as trial witnesses. Since 2006, depositions of experts have been permissible without court order. The Rule provides that the deposing party must pay the expert “the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition.” The advisory committee note to the 2006 amendment to this Rule makes it clear that, in the absence of a court order providing otherwise, the deposing party is not responsible for compensating the expert witness for fees and expenses incurred by the witness to prepare for the deposition. Unfortunately, experience shows that it is not always possible to agree on what is a “reasonable fee” for an expert’s time, and inevitably there will be cases where the parties spar over experts’ deposition bills. There may be a wide discrepancy in what different experts in the same case charge for their time, and when one party’s expert charges an hourly fee that is significantly higher than the opponent’s expert’s fee, the party being presented with the higher bill may attempt to seek relief on the motion calendar. However, any effort to reduce an opposing expert’s deposition bill will have to be supported with proof satisfactory to the motion judge that establishes what a reasonable fee is, and this type of proof may be hard to come by. Unless the motion judge is prepared to say for herself what is reasonable and what isn’t, litigation on this issue may be futile.

§ 13.2.3 Protective Orders Disputes about the conduct of depositions can be resolved through the protective-orders mechanism of Rule 26(c). As is the case with all discovery motions, the parties should attempt to resolve the issue without the necessity of filing a motion, and must include in any motion a certification that such an attempt has been made. While Rule 26(c) permits a motion for protective order concerning a deposition to be filed in the county in which the case is pending or in the county where the deposition is to be taken, the customary practice is to file the motion in the county where the action is pending. Rule 26(c) gives the court the discretion to “make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . .” The court can, among other things, block the discovery, set terms and conditions for the discovery, direct that the discovery be taken by a method other than the one chosen, or prohibit inquiry into certain 13–3

§ 13.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

matters. The provisions of Rule 37(a)(4) regarding expenses and sanctions are expressly incorporated into the protective-order provisions of Rule 26(c).

§ 13.3

DEPOSITIONS TO PERPETUATE TESTIMONY

The circumstances under which depositions may be taken to preserve testimony either before an action is filed or while an appeal is pending are limited. The former is governed by statute, the latter by Rule 27(b). Rule 27(a) states that the procedure for perpetuating testimony before an action is filed “shall be in accordance with the statutes of this state.” Rhode Island General Laws § 9-18-12 establishes the procedure. The statute requires the prospective litigant to file a petition “to any justice of the supreme or superior or family court, or to any justice of a district court,” which petition must set forth the following: • the reasons for the petition, • the name of the witness to be deposed, • the subject matter in issue, and • the identities of all persons known to have any interest in the subject matter at issue. The statute then authorizes the court to designate a notary public or master to take the deposition. While the statute does not specify that the petition must be filed in the court that will likely have subject matter jurisdiction over the dispute, this would be the proper practice. For example, if the prospective dispute is a tort action that would be amenable to the jurisdiction of the Superior Court, then the petition should be filed in the Superior Court and set down on the formal and special cause calendar for hearing. Depositions may be taken pending appeal only if the court determines that it is necessary to perpetuate testimony for use in the event of future proceedings and avoid the failure or delay of justice. Myles v. Women & Infants Hosp., 504 A.2d 452, 455 (R.I. 1986). The procedure cannot be invoked by a litigant who, not satisfied with the results of the trial, seeks to use the deposition while his appeal is pending to explore claims against nonparties who may have been suggested as

13–4

DEPOSITIONS

§ 13.3

defendants by the evidence presented at trial. Myles v. Women & Infants Hosp., 504 A.2d at 455. The purpose of this procedure is to preserve testimony that is in danger of being lost, not to conduct discovery. For example, the procedure may not be used by an insurance company as a vehicle to conduct discovery into the assets of a tortfeasor when the company’s insured seeks the company’s permission to settle the insured’s tort claim against the tortfeasor. Travelers Ins. Co. v. Hindle, 748 A.2d 256 (R.I. 2000).

§ 13.4

OUT-OF-STATE DEPOSITIONS

The authority for taking depositions outside Rhode Island is provided by R.I. Gen. Laws § 9-18-5. The only potentially problematic aspect of taking a deposition outside of Rhode Island for use in the courts of the state is securing the attendance of an unwilling witness. With this exception, taking a deposition outside Rhode Island is no different than taking one in Rhode Island. This statute provides that depositions shall be taken outside Rhode Island under the same general formalities by which they are taken in Rhode Island. Alternatively, the parties can agree that the deposition may be taken under the procedures of the jurisdiction in which the deposition will be taken, but this option should seldom be chosen. It makes much more sense for the parties to take the deposition under the procedures of the forum state, since those will be the procedures that are familiar to counsel. If the witness is under the control of one of the parties, as when, for example, the witness is an expert who will be testifying at trial, or the employee of a corporate party, then there will be no issue regarding securing the presence of the witness at the deposition. However, if the witness is not under the control of one of the parties and is not amenable to appearing voluntarily, then the party noticing the deposition will have to follow the laws of the jurisdiction where the deposition is being taken with regard to the procedure for issuance of a subpoena to compel the attendance of the witness. In this situation, it is always good practice to contact the witness to determine if his or her attendance can be secured voluntarily, thus avoiding the expense and delay associated with seeking the issuance of a subpoena in the foreign state.

13–5

§ 13.5

§ 13.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

There is seldom an issue regarding the person before whom a deposition is taken. Since Rule 28 provides that depositions must “be taken before an officer authorized to administer oaths by the law of the state,” and since notaries public are authorized to administer oaths by R.I. Gen. Laws § 36-2-1, depositions are almost universally taken before a stenographer who is also a notary and can therefore double as the “officer authorized to administer oaths.” Rule 28(b) applies the same rules when depositions are taken outside of Rhode Island; the stenographer usually doubles as the notary public with authority in the foreign jurisdiction to administer oaths. Alternatively, Rule 28(b) permits the Rhode Island court to commission a person in the foreign state take the deposition, or to issue a letter rogatory or letter of request to a person in the foreign state to preside over the deposition.

§ 13.6

DEPOSITION STIPULATIONS

Rule 29 authorizes the parties to stipulate in writing regarding the person before whom the deposition may be taken, the time and place of the taking of the deposition, the notice of deposition, and the manner in which the deposition shall be taken. While there may be some circumstances where it is necessary to stipulate regarding these matters, it is better practice to simply conduct the deposition according to the Superior Court Rules of Civil Procedure. Stipulations regarding depositions are almost unheard of in Rhode Island practice, but anyone who has conducted a deposition in Massachusetts has heard opposing counsel ask, at the outset of the deposition, “The usual stipulations?” Upon inquiring what counsel means by “the usual stipulations,” we usually learn that those stipulations are exactly what is required by the Massachusetts Rules of Civil Procedure. Therefore, “the usual stipulations” are at best unnecessary and at worst dangerous. The danger arises from the possibility that all the parties may not have the same understanding about what stipulations will apply. Even more dangerous is the possibility that the stipulation may not be given effect by the court because it is contrary to the rules of procedure. For example, it is highly unlikely that any stipulation preserving for trial objections that could have been obviated if raised at the time of deposition will be given effect by the trial court. For these reasons, it is the better practice to conduct depositions according to the rules of procedure and to forgo any stipulations whatsoever.

13–6

DEPOSITIONS

§ 13.7

§ 13.7

DEPOSITION PROCEDURE

§ 13.7.1 When Depositions May Be Taken Rule 30(a)(1) establishes the general proposition that any party may take a deposition of any person or party at any time, and without first obtaining court permission. There are three exceptions to this general rule; leave of court to conduct a deposition is required in the following circumstances: • if the deponent is in prison, • if there is no stipulation permitting the deposition and the witness has already been deposed, or • if there is no stipulation permitting the deposition and a plaintiff attempts to take a deposition within thirty days following service of process on any defendant. However, this last prohibition does not apply if the defendant has himself or herself sought discovery or if the plaintiff certifies that the witness will otherwise be unavailable to be deposed because the witness is leaving the state.

§ 13.7.2 Notice of Examination Rule 30(b) sets forth the requirements for notices of deposition. Notices must be in writing and must be served on all other parties in the case. The notice must state: • the time and place where the deposition will be taken; • the name and address of the person to be examined, if known; • a description of the materials to be produced at the deposition pursuant to subpoena, if a subpoena duces tecum is to be served on the witness; and • the method by which the testimony will be recorded, that is, whether “by sound, sound-and-visual, or stenographic means.” If a party other than the deposing party wishes to record the testimony by a method other than that chosen by the deposing party, Rule 30(b)(3) permits that other party to do so at its own expense provided it gives prior written notice to the deponent and the other parties.

13–7

§ 13.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 13.7.3 Attendance of the Witness and Others at Depositions Depositions are usually taken at the office of the examining attorney. However, exceptional circumstances, such as the age, infirmity, or illness of the deponent, may justify taking the deposition at another location, such as the office of the deponent’s attorney or at the deponent’s home. As a courtesy to busy physicians, their depositions are often conducted at their offices. Rule 30(a)(1) imports the subpoena provisions of Rule 45 as the mechanism for compelling the attendance of witnesses at depositions. See Carroccio v. DeRobbio, 108 R.I. 234, 274 A.2d 424 (1971) (a subpoena is necessary to ensure the attendance of a non-party witness at the deposition). While the rules do not specifically so state, it is commonly understood and accepted that parties to a civil action must attend a properly noticed deposition and may not require that a subpoena be served on them in order for them to be under compulsion to attend. When the party is a corporation, this Rule generally applies to officers, directors, and managing agents, but not to employees. Therefore, if a party seeks to depose an employee of a corporation who is not an officer, director, or managing agent, the deposing party must serve a subpoena on the employee or obtain the corporation’s attorney’s agreement to produce the employee at the deposition without the necessity of the subpoena. A defendant who does not reside in Rhode Island ordinarily will not be compelled to travel to Rhode Island to be deposed. Rhode Island follows the “overwhelming authority” that holds that the deposition of a nonresident defendant “will ordinarily be taken at the defendant’s residence or place of business or employment; a motion for protective order under Rule 26(c) that objects to another location will usually be successful.” Ciunci, Inc. v. Logan, 652 A.2d 961, 962 (R.I. 1995), citing 4 Moore’s Federal Practice, ¶ 26.22[1] at 26-367 (2d ed. 1994). However, the trial court justice has discretion in such matters and may order a defendant to travel to Rhode Island if the circumstances so require. In Ciunci, the Rhode Island Supreme Court found that the trial justice had abused his discretion when he compelled a sixty-three-year-old pensioner who lacked funds and could not afford to pay transportation, food, and lodging costs to travel to Rhode Island from Louisiana to sit for his deposition. Under Rule 30(g)(1), if a party who has given notice of a deposition fails to proceed with the deposition and another party attends the aborted deposition, the court may order the noticing party to pay the other party the reasonable expenses incurred in attending the deposition. Kirios v. Arsenault, 632 A.2d 15 (R.I. 1993) (trial judge’s award to plaintiff of one half of his expenses incurred in traveling from his residence in Greece to his deposition that had been noticed by defendant 13–8

DEPOSITIONS

§ 13.7

was proper exercise of court’s discretion where attorney for defendant was unable to proceed with the deposition due to illness). It is often worthwhile to discuss with opposing counsel any issues regarding compelling the attendance of witnesses at depositions. It may be that attendance issues can be worked out without the expense and bother of service of subpoenas. For example, in a personal injury case where family members or friends may be witnesses on liability or damages issues, a simple phone call to counsel may readily obtain an agreement that the witnesses will appear at depositions without the necessity of subpoenas. Also, corporate employees are often produced for deposition by agreement of counsel, without the necessity of subpoenas.

§ 13.7.4 Methods of Recording Depositions Rule 30(b)(2) provides that depositions “may be recorded by sound, sound-andvisual, or stenographic means” and the notice of deposition must specify the manner of recording. The party who takes the deposition is required to bear the cost of the recording, unless the nondeposing party has designated a method of recording the deposition in addition to the method chosen by the deposing party, in which case the counter-designating party must bear the expense of the method that it has designated. Recording a deposition by video means can present significant advantages over a written transcript. First, if the testimony will be presented to the jury at trial in lieu of a live appearance by the witness, presenting it by video means will give the jury the opportunity to view the demeanor and assess the credibility of the witness. Also, a lengthy reading of deposition transcripts can be extremely boring, and often the jury’s attention is lost. Playing a video deposition is a much better way of keeping the jury’s attention focused on the testimony. Second, if the deposition is to be used to impeach a trial witness with a prior inconsistent statement, it is much more effective if the jury hears the statement from the witness’s own mouth by viewing a video recording, rather than if the jury merely sees the trial witness confronted with the prior inconsistent statement in the written deposition transcript.

§ 13.7.5 Production of Documents and Things at Depositions Rule 30(b)(5) permits the deposing party to request that the deponent produce documents or tangible things for examination at a deposition. If the deponent is a party, the notice of deposition “shall be accompanied by. . . a request made in 13–9

§ 13.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

compliance with Rule 34. . .” If the deponent is not a party, then a subpoena duces tecum must be served on the witness and a copy of the subpoena should accompany the notice of deposition. Unless you have already seen the documents and have had sufficient time to review them, it is a risky practice to subpoena or request production of documents for the first time at a deposition where you intend to question the party or witness about the documents. This is especially true if the documents are voluminous. Since Rule 34 requests for production of documents are available to obtain documents from opposing parties, and Rule 45 subpoenas are available to obtain production of documents from nonparties, unless there are significant time constraints the better practice is to use those discovery devices to obtain production of the documents in advance of the deposition. That way, sufficient time can be devoted to an examination of the documents to allow for informed questioning of the witness at the deposition.

§ 13.7.6 Depositions of Organizations When a party requires deposition testimony from a public or private organization, such as a governmental entity or a corporation, Rule 30(b)(6) permits the party to name the entity as the deponent and to “describe with reasonable particularity the matters on which examination is requested.” The Rule then places the burden upon the organization to file a written designation identifying “one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf“ and to give, for each person designated, a description of the matters as to which that witness will testify. For example, in a medical malpractice case against a hospital involving the performance of a CT scan, a notice of deposition of the hospital under Rule 30(b)(6) could contain, after the usual provisions regarding date, time, and location of the deposition, the following statement: Pursuant to R.I. R. Civ. P. 30(b)(6), plaintiff hereby requests that defendant General Hospital designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf regarding the following matters on which examination is requested: procedures, policies, or protocols that were in effect at General Hospital in June of 2006 regarding the performance of CT scans with contrast;

13–10

DEPOSITIONS

§ 13.7

procedures, policies, or protocols that were in effect at General Hospital in June of 2006 regarding the documentation of the performance of CT scans with contrast; procedures, policies, or protocols that were in effect at General Hospital in June of 2006 regarding extravasation of contrast material during the performance of radiologic studies; and the sequence in which the procedures, policies, or protocols that have been produced to plaintiff by defendant General Hospital in this case were adopted, revised, or amended, and the reasons for the revisions or amendments. Alternatively, instead of listing in the body of the deposition notice the matters on which examination is requested, those matters could be listed in a schedule that can be referenced in the body of the deposition notice and attached to the notice as an exhibit. In the author’s experience, the organization named in the notice of deposition neglects to file the required written designation of the individuals who consent to testify. Given the ease with which Internet research can be performed, and the availability of national databanks of depositions, counsel noticing a Rule 30(b)(6) deposition should insist on the written designation of witnesses, and that it be provided sufficiently in advance of the deposition to give counsel sufficient time to conduct research into the individuals who will testify.

§ 13.7.7 Telephonic or Remote Video Depositions Most depositions are important enough that they should be conducted face-toface, even if long-distance travel is required. However, there may be some depositions that are so routine, albeit necessary, that they can be conducted either telephonically or by means of remote video. Rule 30(b)(7) permits depositions by these means, either by stipulation of the parties or court order. Telephone depositions have the benefit of requiring no additional expense beyond the customary fees of the stenographer. They have the disadvantage of the interrogating attorney not being able to see the witness and observe how he or she is reacting to the questions, which will make it impossible for the attorney to thoroughly and accurately assess the witness’s demeanor.

13–11

§ 13.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Depositions taken by video connection (often referred to as video conference depositions) avoid this problem, but add a significant expense. Facilities that provide such video connections usually charge by the hour for transmission time, so for longer depositions, video fees can often equal the travel expenses that would have been incurred if the attorney had traveled to the witness’s location and conducted a face-to-face deposition. Video transmission technology has improved to the point where the long delays between questions and answers that used to plague depositions by video connection are no longer a problem. Rule 30(b)(7) provides that, for purposes of determining the person before whom a deposition may be taken, a remote electronic deposition is deemed to be taken in the place where the deponent will be answering the questions. Therefore, the person who is to administer the oath, who is usually the stenographer who will record the testimony, should be in the same location as the deponent, not in the location of the interrogating attorney.

§ 13.7.8 Conduct of the Deposition: Examination and Cross-Examination (a)

Preliminary Statement

Rule 30(b)(4) mandates that, unless the parties agree otherwise, the officer before whom the deposition is being taken, almost always a stenographer who doubles as a notary public (and can therefore administer oaths), place a “statement on the record” at the beginning of the deposition that includes: • the name and business address of the officer; • the date, time, and place of the deposition; • the name of the deponent; • the administration of the oath to the deponent; and • an indication of all persons present at the deposition. This statement is almost never made at depositions conducted in Rhode Island. Stenographers typically include on the cover page of the deposition a statement indicating the date and time of the deposition and the identities of the witness and the reporter, and usually begin the actual transcription of the testimony with a statement that the witness was “duly sworn.” However, it is doubtful that including the use of such written statements satisfies the “statement on the record” requirement of Rule 30(b)(4). Nor do the parties ever explicitly agree that this 13–12

DEPOSITIONS

§ 13.7

statement need not be made. The fact that the statement is neither made nor expressly waived by the parties is an example of the kind of error or irregularity occurring during a deposition which is waived under Rule 32(e)(3)(B) by not being raised at the time of the deposition. When a deposition is recorded by video, however, it is standard practice for such a statement to be placed on the record. It is customarily made by the videographer, and is followed by voice introductions by each attorney present at the deposition, together with an identification of the party represented.

(b)

Examination and Cross-Examination

Rule 30(c) imports the Rhode Island rules of evidence to govern the manner in which the examination and cross-examination of deposition witnesses shall be conducted. Most importantly, this means that leading questions, which are permitted under R.I. Rules of Evidence 611(c), may be used on cross-examination generally, or on direct examination if the deponent is “a hostile witness, an adverse party, or a witness identified with an adverse party.” Attorneys should take advantage of every opportunity to use leading questions when they are permissible. Although trial judges customarily limit the examination of trial witnesses to direct examination, cross-examination, redirect examination, and recross-examination, this limitation is generally not followed at depositions, and attorneys customarily engage in a back-and-forth examination of the witness until all topics of examination and questions (and, often, all of the attorneys and the witness) have been exhausted.

(c)

Diagrammatic Testimony

Of course, a deposition witness can be questioned regarding documents, photographs, or any other type of demonstrative evidence relevant to the case. In Cunningham v. Heard, 667 A.2d 537 (R.I. 1995), the Rhode Island Supreme Court considered whether a deposition witness could be compelled to draw a diagram to illustrate or explain his testimony. The case arose out of a collision involving a Rhode Island Public Transit Authority bus. At the deposition of the bus driver, plaintiff’s counsel presented the bus driver with a sketch of the intersection where the collision occurred and asked the bus driver to draw on the sketch the location of the bus at a particular point in time. Defense counsel instructed the bus driver not to comply with the request, and the plaintiff’s motion to compel the bus driver to comply with the request was subsequently denied. On appeal, the Rhode Island Supreme Court held that a deponent must comply with a request for so-called diagrammatic testimony. The court noted that it is 13–13

§ 13.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

well established that a trial witness can be compelled to provide testimony regarding directions, locations, or conditions by drawing a diagram to describe them. Since a deposition may be used at trial when the witness is unavailable, if diagrammatic testimony was not permitted at depositions and the witness was unavailable at trial, the opposing party would be unfairly deprived of presenting this important type of testimony at trial. The court also noted that there were sufficient protections in the Superior Court Rules of Civil Procedure to guard against the possibility of abuse in the procedure of obtaining diagrammatic testimony.

(d)

Who May Attend Depositions

Generally, no one may attend the deposition other than the parties, their attorneys, the deponent, and the reporter. However, under Rule 30(c), if written notice is provided to all attorneys in the case at least forty-eight hours in advance of the deposition, attendance of other individuals is permissible. It is reasonable to assume that, if one or more of the other parties has an objection to the attendance of another individual at the deposition, the issue should be addressed by the filing of a motion for a protective order under Rule 26(c). The attendance of insurance adjusters at depositions has become more common in recent years. When this has happened in the author’s experience, defense counsel has never given the notice required by Rule 30(c). While counsel for the plaintiff could object under these circumstances, such an objection would risk incurring the ill will of the adjuster, who is the person the plaintiff’s attorney will most need the cooperation of when it comes time to attempt to settle the case. Therefore, when an uninvited but important person shows up at a deposition, counsel should consider carefully whether he should stand on the formalities of Rule 30(c) or, more prudently, simply introduce the client to the adjuster and proceed with the deposition. It is important to explain to one’s client during deposition preparation that the opposing party, corporate representatives, or insurance adjusters may attend the deposition, even if no Rule 30(c) notice has been received. In this way, the deponent will not be surprised, and possibly unnerved, by the presence of an unexpected observer at the deposition.

(e)

Objections

Prior to the decision of the Rhode Island Supreme Court in Kelvey v. Coughlin, 625 A.2d 775 (R.I. 1993), certain attorneys could be counted on to engage in the kind of “argumentative, suggestive, or obstructive behavior” at depositions that the advisory committee note to the 1995 amendment to subdivision (d) of 13–14

DEPOSITIONS

§ 13.7

Rule 30 indicates is now forbidden. Kelvey involved the deposition of the defendant doctor in a medical malpractice case. Plaintiff’s counsel sought to redepose the doctor, claiming “that the first deposition taken was so adversely affected by the improper comments, objections, and instructions made by Coughlin’s counsel that they interfered with useful discovery.” Kelvey v. Coughlin, 625 A.2d at 775. Noting that Rule 30(c) requires that all objections be noted on the record but that the testimony shall be taken subject to the objections, the court announced a set of rules governing the behavior of counsel at depositions: 1. Counsel for the deponent shall refrain from gratuitous comments and directing the deponent in regard to times, dates, documents, testimony, and the like. 2. Counsel shall refrain from cuing the deponent by objecting in any manner other than stating an objection for the record followed by a word or two describing the legal basis for the objection. 3. Counsel shall refrain from directing the deponent not to answer any questions submitted unless the question calls for privileged information. 4. Counsel shall refrain from dialogue on the record during the course of the deposition. 5. If counsel for any party or person given notice of the deposition believes that these conditions are not being adhered to, that counsel may call for suspension of the deposition and then immediately apply to the court in which the case is pending, or the court in which the case will be brought, for an immediate ruling and remedy. Where appropriate, sanctions should be considered. Kelvey v. Coughlin, 625 A.2d at 777. In 1995, the holding in Kelvey was essentially incorporated into Rule 30(d)(1), which now provides: Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct the deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence 13–15

§ 13.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

directed by the court, or to present a motion under paragraph (3) [seeking protection against unreasonably annoying, embarrassing, or oppressive conduct]. It appears that the announcement of these rules in Kelvey and their incorporation into the Superior Court Rules of Civil Procedure should effectively put an end to “argumentative, suggestive, or obstructive behavior” at depositions. In Menard v. Blazar, 669 A.2d 1160 (R.I. 1996), the Supreme Court quashed an order of the trial court that had permitted the defendant doctor to answer deposition questions regarding the applicable standard of care by consulting with his attorney and answering the questions in writing. The Supreme Court affirmed the trial court’s determination that the questions regarding the standard of care were not privileged and so were a proper subject of deposition questioning. However, the court also held that it was error to allow the doctor to answer the questions in writing and with the assistance of his attorney. “The format adopted by the motion justice unfairly restricted the Menard’s attorney’s ability to fully depose the defendant in circumstances in which he would be unassisted by defense counsel.” Menard v. Blazar, 669 A.2d at 1162.

(f)

Protective Orders

Rule 26(c) protective orders, which protect against discovery tactics that cause “annoyance, embarrassment, oppression, or undue burden or expense,” are expressly incorporated into the deposition process by Rule 30(d)(3). An attorney whose client is being subjected to abusive conduct at the deposition should instruct his client not to answer the abusive questions and state on the record that the deposition is being adjourned pending the court’s decision on a motion for protective order. Under Rule 26(c), the court has the authority to order that the abusive questions need not be answered, and to direct the questioning attorney to cease the abusive conduct. If the motion is granted, the expenses of the motion may be awarded as sanctions under Rule 37(a)(4).

§ 13.7.9 Reviewing, Changing, and Signing the Deposition Rule 30(e) permits a witness to review the deposition transcript and make any changes in form or substance, to be accompanied by a statement of the reasons for making the changes. In order for this review process to be available, it must be requested by counsel for the deponent before the deposition is completed. Changes must be submitted within thirty days after the deponent is notified that

13–16

DEPOSITIONS

§ 13.7

the transcript is available for review. The deponent’s statement of changes and reasons for making them is appended to the deposition transcript by the reporter. The express language of the Rule allows a deponent to make “changes in form or substance.” Thus, it is clear that changes made by the deponent need not be limited to correcting transcription errors by the stenographer, but may include changes that add to, alter, or even contradict deposition testimony. The Rhode Island Supreme Court has not spoken on this issue, but the majority of federal courts that have addressed the application of Rule 30(e) have refused to prevent a deponent from making substantive changes to deposition testimony. See Reilly v. TXU Corp., 230 F.R.D. 486 (N.D. Tex. 2005); Lugtig v. Thomas, 89 F.R.D. 639 (N.D. Ill. 1981); Podell v. Citicorp Diners Club, Inc., 112 F.3d 98 (2d Cir. 1997); Tingley Sys., Inc. v. CSC Consulting, Inc., 152 F. Supp. 2d 95 (D. Mass. 2001). Given the clear language of the Rule permitting “changes in form or substance,” this is clearly the proper result. Therefore, motions that seek to strike substantive changes made to deposition testimony by a deponent under Rule 30(e) ordinarily would be denied. However, changes made by a deponent could result in the court ordering the reopening of the deposition so that the deposing attorney may inquire into the reasons for the changes and examine the deponent on those changes. In addition, if a deponent does make substantive changes to deposition testimony, these changes, and the reasons for them, are a proper subject of cross-examination at trial. Care should be taken by attorneys to explain to clients that the review and signing process is intended only to provide a vehicle for correcting mistakes in the transcript, either mistakes they made in giving testimony or mistakes the stenographer made in recording the testimony. It should be made clear to the deponent that the review process is not an opportunity for the witness to attempt to edit his or her responses or try to come up with “better” answers. In order to limit the likelihood of having the deposition reopened and the client questioned on the Rule 30(e) changes, deposition testimony should be changed only where the answer is important to the case and a clearly incorrect answer was given at the deposition.

§ 13.8

DEPOSITIONS UPON WRITTEN QUESTIONS

Rule 31(a)(4) permits the parties to take deposition by written questions. The Rule permits the parties to serve on each other questions, cross questions, redirect questions, and recross questions. These questions are then delivered to the officer who will take the deposition, who then takes the testimony of the witness in response to the written questions. Given that two important benefits of taking 13–17

§ 13.8

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

depositions are that follow-up questions can be asked based on the answers being given and that counsel will have the benefit of observing and evaluating the witness face-to-face, depositions upon written questions, like telephonic depositions, are not favored by most attorneys. However, where it is impractical for the attorneys to attend the deposition and there is no need for face-to-face observations or where the deponent is located in a jurisdiction that does not permit the attorneys to pose questions directly to the deponent, as is the case in some foreign countries, deposition by written questions can be an invaluable tool.

§ 13.9

USE OF DEPOSITIONS IN COURT PROCEEDINGS

Rule 32 governs the use of depositions in court proceedings. Depositions may be used during a hearing on a motion, in interlocutory proceedings such as hearings on temporary restraining orders or injunctions, or, more commonly, at trial. Regardless of the context in which a deposition is being used, the rules governing its use are the same. This discussion will assume that the deposition is being used at trial. In order to present deposition testimony at trial, Rule 32(a) requires that the testimony must be “admissible under the Rhode Island Rules of Evidence, applied as though the witness were then present and testifying. . .” Therefore, if there is some valid evidentiary objection to the deposition testimony, it will be inadmissible in the same way that it would be if the witness were present in court and an objection was raised to the witness’s trial testimony. For example, in Flanagan v. Wesselhoeft, 765 A.2d 1203 (R.I. 2001), the trial judge had allowed plaintiff to read into evidence portions of the deposition of the minor plaintiff’s father in which the father described conversations he had with two of his daughter’s subsequent treating physicians. The Supreme Court held that this was error because the portions plaintiff read into evidence contained hearsay statements which were offered to prove the truth of the matters asserted, and so were inadmissible under R.I. Rules of Evidence 801(c) and 802. The common practice in the Superior Court is for objections to be presented to the trial judge and ruled upon prior to the presentation of the deposition testimony to the jury. This results in a transcript that is redacted to remove testimony that has been ruled inadmissible and an uninterrupted presentation of the remaining admissible testimony to the jury. Counsel should confer and attempt to resolve any objections prior to submitting the deposition to the trial judge for rulings.

13–18

DEPOSITIONS

§ 13.9

The presentation of deposition testimony at trial, and the preparation of the transcript to redact any inadmissible testimony, should be discussed with the trial judge at the earliest possible time, so that the transcript can be properly edited. This is extremely important when the deposition is being presented at trial by video, because the process of editing the DVD must be done by a technician and sufficient time must be allowed for this process to be completed. Depositions are used in court proceedings generally for two purposes, either to present testimony in lieu of an appearance by the witness during the trial or to impeach a witness with a prior inconsistent statement. The first purpose presents a technical issue and requires an understanding of Rule 32(a)(3)’s five criteria under which deposition testimony may be presented. The second purpose presents an issue of trial technique and requires that the trial lawyer use the proper method for presenting impeaching deposition testimony.

§ 13.9.1 Use of Depositions of Parties Rule 32(a)(2) provides that any part or all of a deposition, so far as admissible under the Rhode Island rules of evidence, applied as though the witness were then present and testifying, may be used against a party for any purpose. For example, any part or all of a party’s deposition may be used for impeachment pursuant to Rule 613, as a statement against interests pursuant to Rule 801(d)(2), or as a statement of then-existing mental, emotional, or physical condition pursuant to Rule 803(3). Thus, if a party has made damaging admissions at deposition, the trial justice may permit opposing counsel to admit that testimony into evidence, subject to the trial justice’s exercise of discretion in determining the manner in which the testimony will be presented to the jury. Super. R. Civ. P. 32(d). Objections to the admissibility of the proffered evidence may be made for any reason that would require the exclusion of the evidence if the witness were then present and testifying, Super. R. Civ. P. 32(b), and any party may rebut any relevant evidence contained in a deposition whether introduced by that party or any other party, Super. R. Civ. P. 32(c). Unlike with nonparty witnesses, the introduction of any portion or all of an adverse party’s deposition shall not be deemed to make the deponent the party’s own witness. Super. R. Civ. P. 32(c). The Rule treats an officer, director, or managing agent of a corporation, or a person who has been designated to testify on behalf of a corporation under Rule 30(b)(6), as a party.

13–19

§ 13.9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 13.9.2 Use of Depositions in Lieu of Live Testimony Deposition testimony in lieu of an appearance by the witness in court is allowed when the witness is unavailable or if the “catchall” provision of Rule 32(a)(3)(E) is satisfied. A witness may be deemed unavailable for any of the following five general reasons: • the witness is dead; • the witness is out of state (provided, however, that the absence of the witness is not due to conduct on the part of the party who is offering the deposition in lieu of the witness’s appearance; • the witness is too old, sick, or infirm to attend the trial; • the witness is in prison; or • the party seeking to present to the deposition has been unable to compel the witness to attend the trial by subpoena. Unless all opposing parties will stipulate to the application of any of these exceptions, a party offering a deposition under any of these exceptions must be prepared to substantiate the applicability of the exception with proper documentation, such as a death certificate or physician’s affidavit. Rule 32(a)(3)(E) provides that, even if a witness has not been deemed unavailable for any of the above reasons, if “such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court,” the trial judge may permit testimony to be presented by deposition. Obviously, the application of this catchall exception will depend on the peculiar circumstances of each situation. The danger in relying on Rule 32(a)(3)(E) at trial is that a ruling on its applicability will not be made until it is likely too late to pursue some other course of action. Of course, if there were another viable course of action, there would likely not be any need to rely on the exception, so its use will generally be limited to last-gasp efforts. The second sentence of Rule 32(a)(3)(E) is important. It provides that if “a deposition of a medical witness or any witness called as a party” has been recorded by video by written stipulation or court order, then the deposition may be used at trial regardless of the availability of the witness. This provision recognizes that expert witnesses, particularly physicians, have very demanding schedules and it is often difficult to obtain their attendance at trial to present live testimony.

13–20

DEPOSITIONS

§ 13.9

The Rule is a reasonable accommodation between the interests of presenting live testimony in court and conducting trials expeditiously and efficiently. Note that, despite the fact that Rule 30(b) permits depositions to be recorded by video without a stipulation or court order, the provision of Rule 32(a)(3)(E) permitting the use of medical or other expert depositions at trial applies only if the video deposition of the expert has been recorded by video by written stipulation or court order.

§ 13.9.3 Rule of Completeness If a party offers only part of a deposition into evidence, then Rule 32(a)(4) permits an adverse party to require that the offering party introduce any other parts of the deposition that are relevant to the part that was previously introduced. This ensures that isolated parts of depositions cannot be introduced into evidence in a way that distorts the testimony by taking it out of context. Different judges may implement this Rule in different ways. Some will require the offering party to introduce those portions of the deposition that the adverse party seeks to have admitted immediately following the introduction of the offering party’s selections. Others will simply permit the adverse party to introduce whatever portions he or she seeks to have admitted in the form of a cross examination of the witness. The latter approach seems preferable, both procedurally and because it would be unfair to require the offering attorney to present evidence that is adverse to her case. However, whichever way it is done, the timing is important to the adverse party, who should insist that the additional portions of the deposition be introduced into evidence immediately following the introduction of the offering party’s selected testimony, and not be postponed until the presentation of the adverse party’s case. This is in accord with the federal rule. See Westinghouse Elec. Corp. v. Wray Equip. Corp., 286 F.2d 491 (1st Cir. 1961).

§ 13.9.4 Methods of Presenting Deposition Testimony If the amount of testimony to be presented by deposition is short, counsel may simply read the testimony to the jury subject to the trial justice’s discretion. However, for testimony of any significant length, it is good practice to have someone on the witness stand to play the part of the witness and read each answer after trial counsel reads each question. This person can be a paralegal or secretary from counsel’s staff, or even another attorney in the firm. Judges generally frown on the practice of hiring trained actors to play the part of the witness, for fear of the possibility of overly-dramatized testimony.

13–21

§ 13.9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 13.9.5 Use of Depositions to Impeach with Prior Inconsistent Statements One of the most important and effective uses of depositions is to impeach a trial witness by showing that the witness testified differently at deposition from how he has testified at trial. Rule 32 (a)(1) permits this practice. Trial attorneys must be able to smoothly and effectively use a deposition for impeachment purposes. The impeaching attorney must make sure that the trial judge has the deposition transcript (either the original transcript, or if neither the trial judge nor opposing counsel objects, a copy) before beginning. The general strategy is to clarify and lock in the particular trial testimony, lead the witness through the foundation facts establishing the deposition, and then confront the witness with, and have him acknowledge that he made, the prior inconsistent statement. Before confronting the witness with the inconsistent deposition testimony, it is important to give opposing counsel sufficient time to state any objection to the impeachment and also to give the trial justice sufficient time to review the deposition question and answer to make sure that it is actually inconsistent with the witness’s trial testimony. Q.

So Mr. Jones, it’s your testimony here today that you were looking straight ahead as your car approached the intersection where the crash occurred, is that right?

A.

That’s right, straight ahead.

Q.

You’re sure about that?

A.

Yes, I am.

Q.

Mr. Jones, do you remember coming to my office in February of 2007 and giving a deposition?

A.

Yes, I remember that.

Q.

You had Ms. Smith with you, the same lawyer who is representing you here court today?

A.

Yes.

Q.

We met in my conference room and I asked you questions about the crash, correct?

A.

Correct.

13–22

DEPOSITIONS

§ 13.9

Q.

There was a stenographer present, and she took down all of my questions and all of your answers, correct?

A.

That’s correct.

Q.

And you took a sworn oath to tell the truth, the same as you took here in court today?

A.

Yes, I did. Your Honor, may I approach the witness? I’m going to refer the witness to his deposition transcript, page 59, beginning at line 8. (Pause here to give opposing counsel time to object, and to give the trial justice time to review the deposition transcript to make sure that the deposition testimony is in fact inconsistent with the trial testimony.)

The Court.

Yes, you may.

Q.

Mr. Jones, I’m showing you your deposition transcript and it’s dated February 26, 2007 correct?

A.

Yes, it is.

Q.

I’m referring you now to page 59 of your deposition transcript and ask you to look at my question and your answer beginning at line 8, and follow along with me as I read it, all right?

A.

Yes.

Q.

“Question: Where were you looking as your car approached the intersection where the crash occurred? “Answer: Well, my cell phone was on the passenger seat and it started ringing just as I was getting close to the intersection, so I reached down and picked it up and looked at the screen to see who was calling.”

Q.

Did I read my question and your answer correctly, Mr. Jones?

A.

Yes, you did.

Q.

And that’s how you testified under oath on February 26, 2007, when you gave your deposition at my office?

A.

Yes, that’s right. 13–23

§ 13.9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

If the deposition has been recorded by video, then instead of asking the witness to follow along with you as you read the prior inconsistent statement, the trial justice may permit you to play the video excerpt containing the prior inconsistent statement. If you intend to impeach a witness by way of a video instead of a written transcription, it is wise to alert the trial justice to your intentions and obtain permission to do so. It is important to understand the difference between using a deposition to impeach a witness, as illustrated above, and using a deposition or other writing to refresh a witness’s recollection. If it appears during trial that a witness who has been deposed has simply forgotten something, as opposed to testifying inconsistently with his or her deposition testimony, then it is permissible to attempt to refresh the witness’s recollection by showing him or her the particular part of his or her deposition transcript that addresses the fact that the witness cannot now recall. Then you can ask the witness whether or not reviewing the deposition transcript refreshes his or her recollection about the fact. Unlike the impeachment process, counsel should not read the deposition testimony aloud when using a deposition to attempt to refresh a trial witness’s recollection. Instead, simply present the witness with the particular question and answer that you want the witness to review, ask him or her to review it silently, and then ask him or her if reviewing the testimony refreshes his or her recollection about the point. If the witness says that it does, then ask the witness what his or her current recollection is, after having reviewed his or her deposition, about the point. If the witness says that reviewing his or her deposition testimony does not refresh his or her recollection, then your attempt has failed and you must move on to another topic. Under certain circumstances, you may be able to have the deposition testimony admitted as past recollection recorded pursuant to R.I. Rules of Evidence 803(5). To do so, however, you not only must establish first that the witness now has insufficient recollection to enable the witness to testify fully and accurately, you must establish that the deposition testimony was made or adopted by the witness when the matter was fresh in the witness’s memory and reflected his or her knowledge correctly. If admitted, the applicable portions of the deposition may be read into the record and received as an exhibit, subject, of course, to the trial justice’s discretion.

§ 13.9.6 Effect of Errors or Irregularities in Depositions (a)

Waiver of Errors, Irregularities, or Objections

Rule 32(e) is intended to eliminate technical objections to depositions, and it describes the kinds of errors and objections that are waived unless they are expressly preserved. They are: 13–24

DEPOSITIONS

§ 13.9

• errors regarding the notice for taking the deposition (“waived unless written objection is promptly served upon the party giving the notice.”); • objection to the qualifications of the officer before whom the deposition is to be taken (“waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.”); • objections as to the manner in which the deposition is taken (“waived unless seasonable objection thereto is made at the taking of the deposition.”); • objections to the form of the questions or answers (“waived unless seasonable objection thereto is made at the taking of the deposition.”); • objections to the oath or affirmation (“waived unless seasonable objection thereto is made at the taking of the deposition.”); • objections to the conduct of parties (“waived unless seasonable objection thereto is made at the taking of the deposition.”); and • errors of any kind which might be obviated, removed, or keyword if promptly presented (“waived unless seasonable objection thereto is made at the taking of the deposition.”).

(b)

Objections That Are Preserved

Rule 32(e)(3)(A) is important; it preserves any objections a party may have “to the competency of the witness or to the competency, relevancy, or the materiality of testimony” without the necessity of objecting to the testimony before or during the taking of the deposition. Thus, it is not necessary to object during the deposition if the questioning attorney asks the witness about, for example, hearsay conversations or matters that are clearly not relevant or material. The proper time for objections like these is at a court proceeding when portions of depositions containing testimony inadmissible under the rules of evidence is offered. There is an important caveat: the objection is not preserved if “the ground of the objection is one which might have been obviated or removed if presented at that time.” The most common example of an objection of this type is for leading questions. If the context of the questioning is such that leading questions are not permissible under R.I. Rules of Evidence 611(c), then they must be objected to at the time of the deposition or they will be waived. This is because the questioning 13–25

§ 13.9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

attorney does have the ability to obviate an objection that her questions are leading if the objection is presented at the time of the deposition.

§ 13.10

TACTICS AND TECHNIQUES

Herewith, a “top ten” of various tactics and techniques that should help to produce more effective depositions.

§ 13.10.1 Establish Clear Goals for Every Deposition This is the most important thing you can do to prepare for any deposition. An unfocused deposition is a waste of time and money, and can do more harm than good. A deposition that is conducted with clearly defined goals in mind will be a success, even if you don’t hear what you were hoping or expected the witness would say.

§ 13.10.2 Give the Witness Appropriate Directions at the Start of the Deposition A trial witness may try to avoid damaging impeachment by a prior inconsistent statement in his deposition by stating that his answer to your question is different at trial because he did not understand your question at the deposition. Therefore, it is important at the outset of every deposition to caution the witness not to attempt to answer any question that he or she does not understand. A suggested line of instruction to the witness might proceed as follows: Q.

Miss Jones, I’m going to be asking you some questions this morning about the car crash you were involved in on March 7, 2007. Before I start my questioning I want to make sure you understand some of the ground rules. First of all, it’s very important that you understand my question before you try to answer it; are you aware of that?

A.

Yes.

Q.

If I ask you a question and you don’t understand what I mean, please don’t try to answer it, okay?

A.

Okay.

Q.

Instead, tell me that you don’t understand it, and I’ll do my best to rephrase it so that you can understand it, all right?

13–26

DEPOSITIONS

§ 13.10

A.

Okay.

Q.

If I ask you a question and you go ahead and answer it without telling me you don’t understand it, we’re all going to assume that you did understand the question; is that okay?

A.

Yes.

§ 13.10.3 Exhaust the Witness’s Recollection on Each Important Point It is crucial to exhaust the witness’s recollection on each specific point of questioning by continually posing such questions as: “Are there any other conversations you can recall having with Dr. Smith since the date of the surgery?” “Have you now testified about all of the conversations that you had with Dr. Smith since the date of the surgery?” “You have testified about a conversation you had with Dr. Smith in your hospital room on the day after the surgery, and another conversation you had with him in his office two weeks after the surgery. Can you recall any other conversations you had with Dr. Smith after the surgery?” “Can you think of any documents or other materials that you could look at that would help you remember any other conversations you had with Dr. Smith?”

§ 13.10.4 Ask Good Questions Simple questions are good questions. Always keep in mind that your deposition may be read or played to a jury, and convoluted or confusing questions will significantly detract from the effectiveness of what you are trying to accomplish. Questions that develop and maintain a conversational tone are good questions. A hostile and adversarial tone will only serve to keep the witness on guard and alert to the possibility of saying anything that may work in your favor. Developing a questioning demeanor and tone that serves to engage the witness in a conversation

13–27

§ 13.10

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

about the subject matter of the deposition will be much more likely to cause the witness to speak freely and, perhaps, loosely. Questions that focus on the subject matter of the litigation are good questions. Will you ever really need to know when and where the witness attended grade school? Is it really important that you learn the name of the witness’s brother-inlaw’s consulting business? Devote your time and your mental energy to asking about what you really need to know.

§ 13.10.5 Use of Leading Questions Rhode Island Rules of Evidence 611 governs the mode and order of interrogation and presentation of witnesses at trial. The Rule requires the trial justice to exercise reasonable control over the mode of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoidance of needless consumption of time, and to protect the witnesses from harassment or undue embarrassment. The Rule requires that leading questions should not be used upon direct examination of witnesses except as may be necessary to develop the witness’s testimony. However, the Rule also states that leading questions ordinarily may be used on crossexamination of a deponent or if the deponent is “a hostile witness, an adverse party, or a witness identified with an adverse party.” Rule 30(c), in turn, incorporated Rule 611 by reference and, therefore, any deposition testimony offered at trial is equally subject to Rule 611. Therefore, the practitioner should consider carefully the extent to which he or she will use leading questions. If the trial court justice determines that your mode of interrogation has obscured the truth, he or she has the discretion to preclude your use of the offending deposition testimony.

§ 13.10.6 Listen to the Witness’s Answers Don’t spend your time at a deposition frantically trying to write down everything the witness says. That is the stenographer’s job. Instead, listen to the witness’s answer, maintain eye contact, and be thinking about whether or not the witness is answering the question you posed and what follow-up questions are necessary based on what the witness is saying.

§ 13.10.7 Repeat the Question Until the Witness Answers It One benefit of listening carefully to the witness while he is answering the question is that it will be apparent when the witness is either intentionally or unintentionally 13–28

DEPOSITIONS

§ 13.10

dodging your question. In either case, you should inform the witness that he has not answered your question and then repeat it. Opposing counsel will likely object that the question has been asked and answered, but since the testimony is taken subject to objections, you will be able to press the witness for a responsive answer.

§ 13.10.8 Do Not Argue with the Opposing Lawyer You will gain nothing by arguing about questions with the opposing lawyer. Under Rule 30(d)(1) and the Kelvey decision, the witness’s attorney is forbidden from making so called “speaking objections” and is limited to voicing a brief statement of an objection. If an opposing lawyer begins to make long-winded objections, you should immediately though politely remind him that his speaking objection is improper and that a brief objection is all that is permitted. You should then immediately return to your questioning of the witness. If your opponent persists in making speaking objections, and you believe his behavior is interfering with your conduct of the deposition, you should indicate on the record that you are adjourning the deposition to seek a protective order to prevent counsel’s continued violation of the Kelvey rule.

§ 13.10.9 Understand the Procedure for Marking Documents as Deposition Exhibits Have extra copies on hand of every document you intend to mark as an exhibit at the deposition. In this way, you will not have to pass a document back and forth between you and the witness. When you want to question a witness about a document, first hand the document to the reporter and request, on the record, that the document be marked as an exhibit for identification. You should identify how you want the document marked: “Please mark this document as plaintiff’s Exhibit 4 for identification” or “Please mark this document as defendant Smith’s Exhibit C for identification.” Plaintiff’s exhibits are marked numerically; defendant’s exhibits are marked by letter. Keep track of your exhibits as the deposition progresses; it is poor form to have to ask the stenographer what the next exhibit number will be. Once the reporter has marked the exhibit, show it to the witness, and at the same time you are showing it to the witness state, “Ms. Jones, I am showing you a document that we have marked as Exhibit 4 for identification. Would you please review that document and tell me if you recognize it?” Have the witness identify what the document is, and then proceed with your questioning of the witness about the document.

13–29

§ 13.10

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Some depositions involve questioning regarding a large number of documents, and it is crucial that all of these documents be gathered at the end of the deposition and left in the custody of the reporter for inclusion with the original transcript. You should take care that no one but the stenographer leaves the deposition with any original exhibits.

§ 13.10.10

Have Realistic Goals When Deposing Experts

A successful deposition of an expert accomplishes two goals. First, it discovers and locks the expert in to every fact or opinion the expert is prepared to testify to at trial, and the basis for each fact or opinion. Second, to the extent possible, it obtains the expert’s agreement to facts or opinions that help your case. It is poor deposition strategy to attempt to cross-examine an expert at her deposition in the same way that you would cross-examine her at trial. This only gives the expert a dress rehearsal for what she will face at trial. Such a strategy should be pursued only if you deem it more important to poke holes in the expert for purposes of encouraging a settlement than to conduct an effective cross examination at trial. Instead, your primary goal should be to learn every possible thing you can about the expert’s proposed testimony including every opinion the expert has, every fact the expert is relying on in forming her opinions, and any support for the expert’s opinions in addition to the stated facts, such as published data or studies. This requires thorough questioning of the type described in § 13.10.3 above. You must continually ask the expert such questions as, “Are there any other facts on which you base your opinion besides those we’ve already talked about?” An adverse expert’s deposition is the time for you to attempt to obtain the expert’s agreement with certain propositions that support your case. If so, these points can very effectively be brought out on cross-examination at trial. Try to break down your own experts’ opinions into as many discrete and simple statements as possible, and then ask the opposing expert if he or she agrees with each proposition, one at a time. If he or she does not agree with the proposition, ask questions to find out why. At trial, you can then cross-examine the expert by asking him or her if he or she agrees with you on each of the points where you know he or she does, one after the other. “You would agree with me that. . ., correct? And you would also agree, wouldn’t you, that. . .? And that’s because. . . , isn’t it?” Getting an adverse expert to make such serial concessions presents your best opportunity of diminishing the force of the expert’s opinions that do not agree with your case and at the same time emphasizing those points that support your case.

13–30

CHAPTER 14

Deposing Medical and Technical Experts Patrick C. Barry § 14.1

§ 14.2

§ 14.3

§ 14.4

Current Rhode Island Law and Practice ......................... 14–1 § 14.1.1

Expert Depositions Allowed as of Right Pursuant to Super. R. Civ. P. 26(b)(4) ................. 14–1

§ 14.1.2

Procedure and Practice ........................................ 14–2

§ 14.1.3

Compensation Related to Depositions ................ 14–4

§ 14.1.4

Experts Not Expected to Testify at Trial ............. 14–6

Preparation and Research ................................................. 14–7 § 14.2.1

Preliminary Considerations ................................. 14–7

§ 14.2.2

Assessing the Completeness of the Disclosure ... 14–9

§ 14.2.3

Researching the Expert and the Science ........... 14–10

§ 14.2.4

What Do You Want to Accomplish? ...................14–11

Use of Documents at Deposition...................................... 14–12 § 14.3.1

The Expert’s File ............................................... 14–12

§ 14.3.2

Communications with Attorneys....................... 14–13

§ 14.3.3

Expert Reports................................................... 14–14

Areas of Examination ...................................................... 14–15 § 14.4.1

Qualifications .................................................... 14–15

§ 14.4.2

Methodology ..................................................... 14–16

§ 14.4.3

Opinions Held and Scope of Consultation ........ 14–17

§ 14.4.4

Areas of Dispute and Agreement ...................... 14–18

§ 14.4.5

Credibility and Bias........................................... 14–19 14–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 14.4.6 § 14.5

Grounds for Excluding or Admitting Trial Testimony ..................................................14–20

Defending the Expert Deposition.....................................14–21 § 14.5.1

Review All Documents in the Expert’s File .......14–21

§ 14.5.2

Prepare the Expert..............................................14–22

§ 14.5.3

(a)

Form and Certainty of Opinions ...............14–22

(b)

Support for Opinions ................................14–22

(c)

Demeanor..................................................14–23

Consultation and/or Questioning During the Deposition ....................................................14–23

EXHIBIT 14A—Excerpts from Rule 26 of the Rhode Island Superior Court Rules of Civil Procedure ......................................14–25 EXHIBIT 14B—Sample Language Requesting That Deponent Bring Documents to Deposition ....................................14–27

14–ii

CHAPTER 14

Deposing Medical and Technical Experts Patrick C. Barry

Scope Note This chapter addresses depositions of expert witnesses. It explains the current state of the law and practice in Rhode Island with regard to availability of such depositions, the handling of fees and expenses, and expert deposition preparation. The chapter also discusses practical areas to consider when deposing an expert witness, such as discoverability of documents, areas of examination, and the goals of conducting such a deposition. The chapter provides citations and discussion of controlling and persuasive Rhode Island authority, as well as some overview of federal District Court decisions where helpful. Other related topics, such as other aspects of depositions generally, admissibility of expert testimony at trial, and motions to exclude expert testimony, are not covered here but may be discussed elsewhere in this book.

§ 14.1

CURRENT RHODE ISLAND LAW AND PRACTICE

§ 14.1.1 Expert Depositions Allowed as of Right Pursuant to Super. R. Civ. P. 26(b)(4) In 2006, the Rhode Island Supreme Court approved a significant amendment to Rule 26(b) of the Rhode Island Superior Court Rules of Civil Procedure. The amended Rule now provides that any party may depose any expert identified by another party in responding to an expert witness interrogatory. Thus, Rhode Island law now essentially allows expert depositions as a matter of right whenever such witnesses have been identified.

14–1

§ 14.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The new section of Rule 26(b)(4)(a) addressing this issue reads as follows: A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party. In addition, the amended Rule also now addresses payment of fees and expenses for the expert witnesses’ appearance at deposition. That section, also included within Rule 26(b)(4)(a), provides as follows: Unless otherwise ordered by the court, the party seeking to depose the expert shall pay the expert the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition. Issues and case law relating to fees and expenses are discussed in more detail in § 14.1.3, Compensation Related to Depositions, below. In addition, the entire text of the previous version of Rule 26, along with the amended language discussed above, is included as Exhibit 14A. The 2006 amendment altered Rhode Island practice by eliminating the tension that sometimes arose in considering whether to proceed with expert depositions. Prior to the 2006 amendment, expert depositions were allowed only by order of the court or agreement of counsel. This often raised the predicament that a request for expert depositions by one party would result in a reciprocal request by the opposing party. It is now clearly the state of the law in Rhode Island, however, that expert depositions are allowed without agreement of the parties and without the involvement of the court.

§ 14.1.2 Procedure and Practice The practice in Rhode Island has long been that the party presenting the expert witness at trial will produce such expert for deposition without a subpoena. This is especially true where the testifying expert is from out of state, and the deposition would take place in the expert’s home state. Without an agreement by counsel, the party requesting the deposition of an out-of-state expert would otherwise be required to obtain a letter rogatory and issue an out-of-state subpoena. Accordingly, when expert depositions are to be conducted, it has generally been the practice that no subpoena is necessary. The amended version of Rule 26 seems to suggest an obligation to produce the testifying expert when a deposition is required, but it is by no means explicit.

14–2

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.1

The benefits of securing an agreement from opposing counsel to produce an expert for deposition before trial, whether within or outside the state, are many. First, a cooperative approach will result in scheduling the deposition at a time and place agreeable to all involved. Second, the efforts should be reciprocal, such that your own experts will not be overly inconvenienced by an adversary’s request for their deposition. Third, the time and expense involved with issuing subpoenas can be avoided. If there is a major concern about whether the expert will actually be secured for deposition, the requesting party can ask that the proffering party accept a subpoena on behalf of the expert witness, particularly when the expert is in Rhode Island. However, any attorney in Rhode Island would be hard-pressed to present an expert at trial that he or she did not voluntarily make reasonably available for deposition upon a request by opposing counsel. Consequently, the first step to securing an expert deposition is ordinarily a telephone call or letter to opposing counsel informing him or her of the request. A written request is best, so that there is a clear record if any later dispute should arise. Counsel is often asked to check with the expert about availability and fees, and then the parties work cooperatively to secure a date, time, and location. A standard deposition notice is then issued to all parties. In conjunction with the deposition notice, counsel often include a request that the deponent (i.e., the expert witness) bring certain documents to the deposition. These requests, although often formulated differently, are essentially requests that the expert produce “his or her file” for examination at the deposition. Multiple examples of such requests are included as Exhibit 14B to this chapter. Ordinarily, production of the materials at the deposition, rather than before, is requested and achieved. Practice Note Do not request documents from an opposing expert that you are not willing to turn over yourself. Expect opposing counsel to follow the “What’s good for the goose is good for the gander” rule and reciprocate. In addition, when receiving such a request in conjunction with defending an expert deposition, scrutinize the request in conjunction with the limitations on expert discovery noted below in § 14.3. An overbroad request may result in a well-founded objection. It is a good practice, however, as discussed below, to segregate and clearly identify any materials not produced so that the matter may be addressed by the court if necessary.

14–3

§ 14.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 14.1.3 Compensation Related to Depositions Once the decision is made to proceed with an expert deposition, numerous other issues arise. An early one concerns the fee the expert will charge to be deposed. Many medical and technical experts charge very high hourly rates, and many others charge a “flat fee” for a deposition, with or without time limits. The fees should always be addressed by counsel and documented at the outset, to avoid disagreement later. The 2006 amendment to Rule 26(b), however, helped eliminate much confusion in this area. It is now clear that the party requesting the deposition of a testifying expert is responsible for a reasonable fee for the time spent in deposition and any attendant reasonable costs incurred by the expert in attending the deposition. As noted above, current Rhode Island law provides that [u]nless otherwise ordered by the court, the party seeking to depose the expert shall pay the expert the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition. Super. R. Civ. P. 26(b)(4)(a). Counsel requesting the deposition is not responsible for the following items: unreasonable fees charged for time in deposition; time spent by the expert in preparing for the deposition; and time or expense incurred by opposing counsel to prepare for or attend the deposition. The 2006 amendment likely renders moot a 2004 Superior Court decision that had been seen as persuasive prior to the amendment. In Marley v. Wool, 2004 WL 2075182 (Super. Ct., Providence Cty. July 23, 2004), Justice Gibney held that reimbursement for time spent by an expert to prepare for a deposition was proper, because there was “a reasonable relationship” between the fees and the services rendered. In light of the 2006 amendment, however, this analysis is likely no longer applicable, and counsel should be wary of any suggestion from an opponent that expert deposition fees be handled in this manner. The primary issue now facing attorneys on this point is the reasonableness of the expert’s fees. Many experts charge hundreds (even thousands) of dollars per hour, or very high flat fees for depositions. As always, what is “reasonable” in one case may not be reasonable in another. And there may be little or no agreement among all counsel involved in any individual case that an expert’s deposition fee is reasonable. A recent Superior Court case is instructive on this issue. In Hooper v. Koslow, 2008 WL 5539180 (Super. Ct., Kent Cty. Dec. 1, 2008), an expert who had been 14–4

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.1

deposed by defense counsel (but apparently not paid) sought $3,700 in expert fees from the plaintiff. Plaintiff’s counsel filed a motion requesting that defense counsel pay the expert’s fee. Defense counsel objected on the grounds that the fee was not “reasonable” under the new version of Rule 26(b)(4)(a). Justice Lanphear, however, overruled the objection and ordered defense counsel to pay the entire fee, finding that defense counsel had not met its burden of showing that the fee was unreasonable. The judge’s analysis follows: In the exercise of its discretion, several factors will be applied in determining the appropriateness of the fee to be reimbursed. First, the party challenging the fee must place before the court evidence that the requested fee is unreasonable, including but not limited to, whether the prevailing rate, if there is one, is significantly different. Second, the court should weigh other factors including: the field of specialty, the number and availability of testifying experts in the field, the individual expert’s standard fees, the amount of time required for the deposition and travel thereto, the uniqueness of the specialty, the uniqueness of the testimony, and other challenges incident to locating the expert. By enumerating this list, the court solely intends to set forth factors to be considered. This list is not exhaustive and will not limit the consideration of other factors appropriate for the court’s exercise of its discretion. Hooper v. Koslow, 2008 WL 5539180, at 3 (emphasis added). Because the party challenging the fee did not bring forth any evidence that the fee was unreasonable, the court upheld the entire fee and ordered payment. As noted, many different factors play into the determination of reasonableness, and acceptable fees may vary from case to case and from expert to expert. One issue left unresolved is the status of the rule enunciated by the Rhode Island Supreme Court in Gerstein v. Scotti, 626 A.2d 236 (R.I. 1993). In Gerstein, the court held that where a party intends to introduce expert opinion at trial by affidavit pursuant to R.I. Gen. Laws § 9-19-27, the proponent must provide one hour of deposition time at his or her own expense to allow for crossexamination. Only if the deposition exceeds one hour does the party taking the deposition become responsible for the expert’s fees. It is unclear whether this rule has been supplanted by the 2006 amendment to Rule 26, but because affidavits can be provided under R.I. Gen. Laws § 9-19-27 14–5

§ 14.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

without “answering the expert interrogatory” as noted in the new Rule 26, it would seem that this expert compensation scheme has survived. In addition, any time medical affidavits are presented under R.I. Gen. Laws § 9-19-27, counsel should expect the opposing party to request a deposition of that medical expert, as it may present the only opportunity for cross-examination. See Martinez v. Kurdziel, 612 A.2d 669 (R.I. 1992). Practice Note Be sure to address the handling of any deposition fee with your own experts prior to deposition. It is not uncommon for an expert to seek payment from the attorney who is producing that expert as a witness. This is particularly true where the requesting party has not made prepayment or tendered a check at the actual deposition. Counsel may be left in the unenviable position of having an angry expert, being forced to come up with the expert’s fee unexpectedly, and then being forced to seek reimbursement from opposing counsel. Thus, it is wise not to overlook the issue of actual payment as opposed to the legal issue of which party is ultimately responsible.

§ 14.1.4 Experts Not Expected to Testify at Trial It is clearly the rule in Rhode Island that nontestifying experts cannot be deposed by opposing counsel absent a showing of exceptional circumstances. In DEPCO v. Mapleroot, 715 A.2d 1260 (R.I. 1998), defense counsel sought to depose the plaintiff’s nontestifying expert on the basis that the nontestifying expert had an expansive relationship with the plaintiff and worked on other matters as well. The Rhode Island Supreme Court reversed a Superior Court order allowing the deposition to go forward. The “facts known and opinions held” by nontestifying experts are covered by the “qualified privilege” contained within Rule 26(b)(4)(B). Thus, Rule 26 “drastically curtails” the right of an opposing party to obtain discovery relating to nontestifying experts. DEPCO v. Mapleroot, 715 A.2d at 1265 n.1. Such facts and opinions can be discovered “only as provided in Rule 35(b) [permitting discovery of expert reports pursuant to court-ordered physical or mental examination] or upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.” DEPCO v. Mapleroot, 715 A.2d at 1265 n.1 (quoting Super. R. Civ. P. 26(b)(4)(B)). 14–6

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.2

§ 14.2

PREPARATION AND RESEARCH

§ 14.2.1 Preliminary Considerations Despite the fact that expert depositions are allowed as a matter of course in Rhode Island, important considerations remain in deciding whether to proceed with depositions of expert witnesses. The careful practitioner should consider many factors. What will be the commitment of time and money necessary to conduct the deposition? Does the size, value, or complexity of the case warrant such a commitment of resources? How much is already known about the expert and the anticipated opinions? The benefits of taking a pretrial deposition of a testifying expert include the following: • thoroughly exploring all aspects of the expert’s qualifications, methodology, basis, and opinions; • identifying areas of agreement and admissions that may strengthen your client’s case; • preparing an effective cross-examination by committing the expert to sworn testimony, and arming yourself with a transcript to use in cross; and • setting up a meaningful pretrial challenge to the admissibility of the expert’s testimony, either in whole or in part. Some of the disadvantages of taking an expert’s deposition include the following: • the time and expense involved, • the loss of the “element of surprise” at trial—the deposition often gives both your opponent and the expert a preview of your strategy and can actually better prepare the opposing expert for trial, and • the chance that the commitment of time and money is effectively lost if the deposition does not result in the accomplishment of the intended objective. These are complex factors to be carefully considered in each case, and with each expert. Consider these basic approaches together with an analysis of what you would really like to accomplish in the deposition, as discussed below in § 14.2.3.

14–7

§ 14.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The questions can only be answered by the particular attorney handling that particular case, because no single answer is always correct. Two primary concerns about whether to take an expert deposition merit further discussion. First, consider whether the deposition is necessary to prepare a truly effective cross-examination at trial. It may not be. Often, if a written expert report has been received, and/or if the expert is known to counsel, there may be no need to “nail down” questions for an effective cross. If sufficient information is available, and if counsel is confident of the ability to elicit damaging admissions from the expert witness at trial without the benefit of a new deposition transcript, the deposition may not be necessary. This is especially true where counsel has cross-examined the same expert previously, or possesses transcripts from other proceedings where the expert has already testified. If the expert is already “on record” with sufficient admissions to prepare an effective cross-examination by relying on those materials, the extra expense and time commitment for a deposition may be unnecessary. See Gibbons v. R.I. Co., 37 R.I. 89 (1914) (allowing cross-examination with statement made in deposition given in a separate case between different parties). Second, consider whether there is an anticipated legitimate challenge to the admissibility of the expert’s opinions. Any time an expert is identified, there is always some chance that the proffered opinions may not be admitted in the midst of trial. Problems with form, relevancy, and basis almost always arise, and objections can often be dealt with at trial. Sometimes, however, there are situations where a substantial challenge, perhaps based more on the particular expert’s qualifications or methodology, can arise. These situations provide prime opportunities for a legitimate pretrial challenge to the admissibility of such testimony, generally in the form of a motion in limine. If counsel is considering such a challenge, a deposition of the suspect expert is certainly warranted, and almost always required. This is discussed in greater detail in § 14.4.6, below. Keep in mind that two other countervailing arguments to conducting an expert deposition are almost always present. The desire to prepare a thorough and “locked down” cross-examination at trial should be weighed against the “element of surprise” in cross-examining an expert at trial without first deposing him or her. A deposition is often seen as a test run of the cross-examination at trial and may only help to better prepare your adversary’s expert for trial testimony. This is a difficult decision that the careful practitioner must make in each case, based on the unique facts and circumstances of each particular situation.

14–8

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.2

§ 14.2.2 Assessing the Completeness of the Disclosure Rule 26 allows any party to issue an interrogatory asking that another party identify testifying expert witnesses and provide certain information about their backgrounds and expected testimony. The relevant portion of the Rule reads as follows: A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Super. R. Civ. P. 26(b)(4)(A). Such interrogatories are routinely issued in Rhode Island, often at the very earliest stages of litigation, whether or not an opposing party can be expected to have retained a testifying expert by that time. Such a request is the “expert interrogatory” referred to in the 2006 amendment. Before embarking on an expert deposition, counsel should ensure that the opposing party has fully responded to an interrogatory seeking this information. There are several important things to consider. The disclosure made in response to such interrogatory should be sufficient in itself to support admissibility of the opinions. Thus, a responsive answer should reasonably disclose all opinions, facts relied on, qualifications, etc. At trial, parties routinely turn to the interrogatory answer to see if adequate disclosure and notice have been provided regarding the opinions actually elicited at trial. This point is important, because counsel can make a persuasive argument that the interrogatory answer must be sufficiently developed and detailed to support admissibility with or without a deposition. Accordingly, review the expert disclosure and look for any “holes” or missing information that should be provided before taking the deposition. Commit the opposing expert and counsel to state positions in the interrogatory answer, thereby avoiding “wiggle room” at the deposition. Many experts have been excluded at trial because the witness or one or more opinions were either not disclosed at all, or were not disclosed adequately. See Neri v. Nationwide, 719 A.2d 1150 (R.I. 1998). Ordinarily, opposing counsel should agree to provide a professional resume or “curriculum vitae” of the expert, and to perhaps supplement a deficient disclosure statement when the areas of further inquiry are identified. Again, a telephone call or letter often starts the process. Where this is not successful, a Rule 37 motion to compel a more responsive answer to the interrogatory may be appropriate. Obtaining an appropriate disclosure statement, a copy of any reports 14–9

§ 14.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

written by the expert, and a curriculum vitae are absolutely required of the cautious practitioner before deposing an expert. Practice Note Carefully consider whether you want to provide your opponent with the opportunity to supplement the expert witness disclosure in order to take a thorough deposition. A severely deficient disclosure may result in valid objections at trial to the admissibility of the anticipated expert opinions. Taking the expert deposition and obtaining a more detailed disclosure may only give your opponent a “second bite at the apple.” This concern must be weighed against the likelihood of the opinions being admitted and the information and advantage to be gained through deposing the expert.

§ 14.2.3 Researching the Expert and the Science Before taking an expert deposition, counsel should make an effort to vigorously research both the individual expert and the general medical or technical areas involved. In the modern age, with ready access to computer databases and digital libraries right from the attorney’s desktop, there is no excuse for failing to conduct a thorough investigation. Numerous resources are available to research expert witnesses and scientific topics. As to the particular expert involved in the case, study the expert’s C.V. and determine the quality and quantity of the expert’s actual experience in the field. Identify and obtain copies of scholarly articles or books written by the expert. Look for possible connections or professional relationships between the expert and the party proffering said expert, or any other parties in the case. Ask your own expert witnesses about the person. If the C.V. or other disclosure provides names of cases where the expert has testified previously, scour those court files and contact the attorneys involved. In short, conduct a thorough investigation of the expert based on the disclosure with which you have been provided. Then, continue your investigation by researching the expert witness further. Use Internet search engines like Google to find relevant information. Use multiple search engines, as they often reveal different results. Turn to third-party, generally Web-based sources, as well. Many professional organizations, such as the American Association for Justice and the Defense Research Institute, maintain extensive document and deposition libraries that can be accessed for a fee. Additional organizations and Web sites may reveal additional information, such as TASA (Technical Advisory Service for Attorneys) and IDEX. Research the assertions made by the expert about his or her basic qualifications, such as whether

14–10

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.2

he or she is in fact board-certified in a particular field of medicine, or whether he or she still belongs to all the professional organizations mentioned. Counsel must undertake a similar investigation of the medical, technical, or scientific topic involved. Numerous avenues are available here as well. Papers written by the expert should be compared to others on the same topic. Familiarize yourself with the history of the topic as well. Medical, technical, and scientific knowledge develops over time, with varying offshoots or “schools of thought” branching out. Try to determine where the expert stands in terms of others in the same field. Continue a Web-based search as well. Numerous sites and organizations offer virtually limitless information. For medical issues, for example, Medline, EMedicine, WebSurg, and other Web sites offer significant information at little or no cost. Use your own experts as a resource as well. You must be prepared to stand up to the expert on technical matters at every turn in the deposition.

§ 14.2.4 What Do You Want to Accomplish? Finally, before actually taking the deposition of any expert, counsel should think about and clearly identify the objectives for the deposition. Doing so will impact preparation, study, and the actual deposition examination. There are numerous possible objectives, any or all of which are sound reasons for taking on the time and expense necessary to conduct a quality expert witness deposition. • Are you merely trying to fully explore the expert opinions by focusing on the disclosure and “fleshing out” all the details? • Do you wish to commit the expert to certain admissions or statements, such that an effective cross-examination at trial can be accomplished by repeating much of the deposition questioning? • Do you want instead to “lay traps” for the expert, committing him or her to positions you intend to attack at trial with material not disclosed at the deposition? • Will you make an attempt to so badly damage the expert in deposition that the opposing party or carrier may decide to settle the claims? • Do you want to prepare a detailed basis to exclude the expert’s testimony, either in whole or in part, as scientifically invalid? Formulating a plan of what you intend to accomplish will drive much of your overall deposition strategy. As noted below, many of these objectives have certain rules that will ultimately apply to a judicial review of the matter, and the 14–11

§ 14.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

deposition must be prepared and conducted accordingly. For instance, if your ultimate goal is to disqualify the expert from testifying at trial, be aware of the endgame rules that will apply. See § 14.4.6, below. Practice Note There are basic rules that should be applied in essentially all expert depositions. First, make sure you explore in detail all possible testimony that an expert might present on direct examination. This includes information that might assist your own case as well. Second, make sure you explore fully the bases for all opinions. This means revealing all of the materials relied on, all facts that are especially important to the opinions, all areas of training or experience that impact the testimony, all professional publications or other materials that support the opinions, and a full explanation of the expert’s analysis or methodology. Third, always commit the expert to testimony on areas that strengthen your claim, such as areas of agreement with your own experts, or any area where the expert believes the party that has retained him or her may have failed to meet the applicable standards of conduct.

§ 14.3

USE OF DOCUMENTS AT DEPOSITION

§ 14.3.1 The Expert’s File As noted above, the expert witness should be instructed to produce his or her entire file at the deposition. An extensive examination of the file should ordinarily be performed as well. In particular, counsel should confirm the presence of all materials stated to be reviewed or relied on by the expert, search for any writings or other documents created by the expert, search through individual pages of materials to find any notations or markings made by the expert, and look for any other materials that may help reveal weaknesses in the expert’s thought processes and analysis. Generally speaking, the entire contents of an expert’s file (subject to the exception for attorney work product noted below) will be discoverable. This certainly includes all materials “reviewed and relied on” by the expert. The file will often include ancillary information as well, such as billing statements and/or invoices, and, potentially, correspondence to and from counsel. Such information is generally discoverable for purposes of attacking the expert’s bias and/or credibility. These general rules must be considered in conjunction with the Rhode Island Supreme Court’s holding in Crowe Countryside Realty Assocs. Co. v. Novare 14–12

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.3

Engineers, Inc., 891 A.2d 838 (R.I. 2006), discussed in more detail in § 14.3.2, below. The federal courts have taken different approaches to resolving these issues, some requiring broad disclosure and others taking a more protective approach. There are federal cases holding that any document generated by an expert is discoverable because such documents are not work product within the meaning of Rule 26(b)(3). County of Suffolk v. Long Island Lighting Co., 122 F.R.D. 120, 122–23 (E.D.N.Y. 1988). Some courts have even extended the scope of the Rule to allow discovery of an expert’s draft reports as well as notes and memorandums generated by experts in the process of finalizing their reports. BCF Oil Ref., Inc. v. Consol. Edison Co. of N.Y., Inc., 171 F.R.D. 57 (1997). For a detailed review of the case law, see Andrew T. Berry, “Some Current Issues on Expert Depositions and Discovery,” in Opinion and Expert Testimony in Federal and State Courts (ALI-ABA Jan. 2007), available at http://www.aliaba.org/freearticles/CM060DNA.pdf. See also Gabrielle R. Wolohojian & David A. Giangrasso, “Expert Discovery and the Work Product Doctrine—Is Anything Protected?” Boston B.J., Mar./Apr. 2004, at 10. The file is often reviewed by the deposing counsel at or just before the deposition. It is appropriate to mark parts or all of an expert’s file as exhibits for the deposition. Practical concerns over obtaining copies or returning the originals can generally be worked out among counsel. It is sometimes best to mark separate documents as individual exhibits, rather than simply collecting the entire file as a single exhibit, in order to ensure completeness and accuracy. This can be a time-consuming process, but is often necessary in a complex case. A different strategy is to mark individually those documents within the file that are “outside” of the regular case documents. For instance, in a medical negligence case, an expert ordinarily will have all of the medical records. These are generally well known to all counsel involved. The file may also include, however, other documents such as medical articles, invoices, notes, and the like. To save time and copying expense, a practitioner can consider marking only these ancillary documents as exhibits. Be sure to commit the expert to an identification of all other materials on the record, however, if they are not marked.

§ 14.3.2 Communications with Attorneys Importantly, Rhode Island recently adopted a narrow approach to discoverability of materials provided by counsel to an expert. In Crowe Countryside Realty Assocs. Co. v. Novare Engineers, Inc., 891 A.2d 838 (R.I. 2006), the Rhode Island Supreme Court held that attorney work product “is not divested of its absolute protection under Rule 26(b)(3) merely because an attorney shares it with a testifying expert witness.” The Supreme Court reversed the trial court justice, rejecting the notion that “all information revealed to a testifying expert was ‘open for grabs’ and that a lawyer is required to be cognizant of that fact when sharing 14–13

§ 14.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

information with experts expected to testify.” Crowe Countryside Realty Assocs. Co. v. Novare Eng’rs, Inc., 891 A.2d at 848. The court examined federal case law that has been persuasive in other jurisdictions, including Boring v. Keller, 97 F.R.D. 404 (D. Colo. 1998) (holding that discovery of all work product reviewed by testifying experts was necessary for impeachment), and Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3d Cir. 1984) (holding that factual work product shared with an expert is discoverable, while attorney work product containing mental impressions, conclusions, opinions, and theories is not). Thus, the Crowe Countryside decision is an important case and should be carefully considered by counsel. The Third Circuit’s decision in Bogosian is also recommended reading on this point. In light of Crowe Countryside, counsel should make careful inquiry of the expert about all documents received from counsel, which may or not be limited to correspondence. Some attorneys share internal chronologies and memoranda or reports from other experts. If not apparent in the file, make a thorough inquiry into such documents. Were any such documents provided? What were they used for? Why are they not included in the file now? Where are they now? Any objection to producing such documents under Crowe Countryside likely requires a thorough identification, perhaps in a privilege log, of any such documents. Crowe Countryside endorsed an in camera review by the court to analyze any claim of attorney work product, so deposing counsel should be entitled to a clear identification of all documents. Crowe Countryside also stands for the proposition that redacted copies, including basic facts but excluding actual attorney mental impressions, may be appropriate.

§ 14.3.3 Expert Reports Reports or letters written by the expert for counsel are generally discoverable, even if not produced before the deposition. The classic expert report, the Rule 35 examination of mental or physical condition, has an independent basis for discoverability under Rule 35(c). Such reports are ordinarily produced before deposition. Many times, however, an expert will have prepared a different type of report, perhaps on a technical or scientific matter outside of Rule 35. In addition, many experts produce letters to counsel detailing or outlining their opinions in the case, which are sometimes not produced prior to the deposition. Such documents reveal the expert’s analysis and thought process, and may reveal inconsistent statements made by the expert at a time before the deposition. They may also reveal changes over time in the expert’s analysis, or that the expert formulated opinions much earlier in the litigation, before all facts were known. Such letters or reports can be powerful evidence on cross-examination. When 14–14

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.3

deposing an expert, be sure to inquire very thoroughly about the existence of any such reports, in any form and at any time, even if not included in the file. The discoverability of “draft” versions of reports that have been produced is one topic that has not been clearly resolved in Rhode Island. A careful reading of Crowe Countryside reveals that such materials may be discoverable, because they do not include attorney work product. Federal case law exists, however, supporting the discoverability of all expert work product completed in the course of formulating opinions, including draft reports. See County of Suffolk v. Long Island Lighting Co., 122 F.R.D. 120, 122–23 (E.D.N.Y. 1988); BCF Oil Ref., Inc. v. Consol. Edison Co. of N.Y., Inc., 171 F.R.D. 57 (1997). For a discussion of the discoverability of experts’ prior draft reports under the federal rules, see Andrew T. Berry, “Some Current Issues on Expert Depositions and Discovery,” in Opinion and Expert Testimony in Federal and State Courts (ALI-ABA Jan. 2007) (“As an expert’s prior drafts of his or her own report arguably constitute information ‘considered’ by the expert, ‘courts have nearly uniformly required production of an expert’s own drafts of reports.’”) (quoting Stephen D. Easton & Franklin D. Romines II, “Dealing with Draft Dodgers: Automatic Production of Drafts of Expert Witness Reports,” 22 Rev. Litig. 355, 372 n.73 (2003)), available at http://www.ali-aba.org/freearticles/CM060DNA.pdf.

§ 14.4

AREAS OF EXAMINATION

§ 14.4.1 Qualifications All areas of questioning related to an expert’s qualifications are fair game. Keep in mind that while an expert witness may be qualified to render certain opinions, that same expert may not be qualified to render opinions that stray far afield from his or her specialty. In Rhode Island, however, the courts have generally been lenient in finding that an expert qualified by sufficient education, training, and experience in a broad field, such as medicine, may be qualified to render opinions outside of his or her precise specialty. Debar v. Women & Infants Hosp., 762 A.2d 1182 (R.I. 2000); Buja v. Morningstar, 688 A.2d 817 (R.I. 1997); Marshall v. Med. Assocs. of R.I., 677 A.2d 425 (R.I. 1996). Generally, examination of an expert’s qualifications will be directed by the expert’s resume or C.V., which counsel should ensure is produced before the deposition. This will give an outline of an expert’s education, training, and experience. Use it to prepare questioning, and keep in mind that it may provide a treasure trove of damaging information as well, as reflected below. It is usually best to focus on the subjects that the expert will testify about and the particular 14–15

§ 14.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

opinions that the expert is expected to provide, rather than the expert’s general qualifications. Questions about qualifications may serve two purposes. First, in all cases, try to weaken the expert’s persuasiveness to a jury by showing additional facts about the expert’s education, training, and experience. For instance, if an expert discloses that he or she attended a prestigious university, ask him or her about actual class rank. If an expert has been certified or tested in a certain field, explore how many attempts it took for him or her to pass. Second, where there may be a substantive challenge to the expert’s qualifications to render certain opinions, deposition questioning can form the basis of a motion to exclude the testimony. In this situation, define the facts and issues of your particular case very narrowly, and explore whether the expert witness truly has a sufficient background in that precise field. For instance, a structural engineer with extensive design and building experience may never have worked on a bridge project. If the field of expertise were defined as structural engineering, that expert may be qualified. If the field of expertise is defined as bridge engineering, that same expert may not be qualified. In general, all areas related to the expert’s qualifications may be explored, even if they are uncomfortable or confrontational. This includes the imposition of professional discipline, lost memberships in professional organizations, a history of being excluded by other courts, the veracity of all assertions made by the expert concerning qualifications to testify, and the expert’s actual knowledge of the subject at hand. See Cabana v. Forcier, 200 F.R.D. 9 (D. Mass. 2001). Practice Note Do not hesitate to attack an expert’s qualifications in deposition. The expert is well compensated for his or her time and typically has answered the same questions before. There is, of course, no jury present, so do not be concerned about the effects of a confrontational attack on qualifications. The same questions can later be dropped from your cross-examination at trial if they are too harsh.

§ 14.4.2 Methodology The expert’s methodology is a very important area to explore. “Methodology” refers to the manner in which the expert analyzed the issues and reached his or her opinions. In many—perhaps most—cases, methodology is not a major issue. For instance, in virtually any medical case, the methodology for most physicians is the same and is well accepted as appropriate. Review of the appropriate medical records; consideration of the expert’s years of education, training, and experience; 14–16

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.4

and application of that knowledge to the facts at hand is generally sufficient. Provided that this analysis is done in a manner that is consistent with other physicians, and in a manner basically consistent with the expert’s own clinical practice, it will almost always support admissibility. Still, even in this situation, questioning can be fruitful. Look for any deviation from the expected methodology, and use this to weaken the expert. For instance, if an expert would normally speak to colleagues in actual practice, but did not do so to form opinions, that information may be helpful. Likewise, if the expert would normally want to have additional information that he or she did not have access to in the case at hand, it can show that the expert’s analysis in the case is comparatively weak. More importantly, Rhode Island has essentially adopted the “gatekeeper” analysis, formulated by the U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See DiPetrillo v. Dow Chem. Co., 729 A.2d 677 (R.I. 1999). Thus, any time the methodology deviates too far from what is normally done in conducting independent scientific research, the testimony may be suspect. Any time the expert has conducted any of his or her own testing or work, such as calculations, reconstructions, computer modeling, or any other systematic analysis, that methodology must be very carefully examined. Some potential lines of questioning are the following: • Do you believe other experts in your field would analyze this case the same way you did? • Would other [engineers, doctors, accountants, etc.] rely on that same type of information? • Is your method of analysis supported by any professional literature or textbooks? • Has your method ever been criticized by other professionals in the field? • Is this the way you would analyze these issues in your own practice?

§ 14.4.3 Opinions Held and Scope of Consultation Typically, the majority of time spent in deposition consists of thorough exploration of all expert opinions held, together with the basis for them. This requires a thorough examination of any opinions held that are unhelpful to the party proffering 14–17

§ 14.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

the expert. Focus on opinions actually held, rather than the opinions that were disclosed. Questions such as “do you hold any opinion about” a particular subject are proper. If the expert does indeed hold such an opinion based on the work performed in the case, the testimony generally may be taken, even if it has not been disclosed or is in fact harmful to the expert’s party. Accordingly, a plaintiff’s expert who is testifying about deviations from the standard of care should also be questioned to establish areas in which the standard was met. Conversely, a defense expert should be examined as to any areas in which he or she feels there was negligence, regardless of whether he or she feels it was causal or relevant. As noted above, be sure to fully explore the bases for all opinions. This means persistent questioning about the following: • all of the materials relied on; • all facts that are important to the opinions; • the source of such facts, as reflected in the evidence of record; • all areas of training or experience that impact the testimony; • all professional publications or other materials (from “outside” of the case) that support the opinions; and • a full explanation of the expert’s analysis or methodology. This is important because most courts hold that the basis of the expert’s opinion is discoverable, even if it is grounded on facts that would otherwise be privileged or irrelevant. Mitchell v. Hutchings, 116 F.R.D. 481 (D. Utah 1987). In addition, make an effort to clearly identify at the outset exactly what subjects the expert will be testifying about. Often, an expert is retained for a particular purpose, and may not be offering any opinion testimony about other issues in the case. This is often done because the expert is not qualified and/or prepared to discuss other issues. Where this is the case, commit the expert to that position by forcing an admission that the expert is not qualified to render opinions on that subject. There may be areas that are simply beyond what the expert was asked to consider, and defining those limits will help shorten the deposition and prevent any surprises at trial.

§ 14.4.4 Areas of Dispute and Agreement Finding common ground with the expert can be a very effective strategy. This can include basic medical, scientific, or technical areas on which both sides 14–18

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.4

agree. In addition, this may include other areas that can be used against the party who retained the expert. For instance, in a medical negligence case, an expert testifying that there was no breach of the standard of care might nonetheless still provide compelling testimony about the severity of the claimant’s injury. A caution is in order, however: If the expert is not called at trial, the opposing party that secured the damaging deposition testimony is barred from presenting that testimony in its own case-in-chief. Owens v. Silvia, 838 A.2d 881 (R.I. 2003).

§ 14.4.5 Credibility and Bias It follows from the old axiom that “evidence of bias is always admissible” that a party must be allowed to search for evidence of bias. The same is true for credibility. Thus, in deposing an expert, both plaintiffs’ and defense counsel will thoroughly explore the expert’s professional background. This should include examination of the number of times an expert has testified generally, the proportion of plaintiff-friendly and defense-friendly testimony, and compensation related to the same. It may also include questioning on the expert’s relationship with counsel involved in the case, or other “collateral” issues. See Bottorff v. Bethlehem Steel Corp., 130 F.R.D. 97 (N.D. Ind. 1990); Bockweg v. Anderson, 117 F.R.D. 563 (M.D.N.C. 1987); County of Suffolk v. Long Island Lighting Co., 122 F.R.D. 120 (E.D.N.Y. 1988). This line of questioning is most effective when it is ultimately used to portray the expert as either an advocate for one side or the other, or a hired gun willing to say anything. But be sure to go beyond this basic line of questioning. Thoroughly explore an expert’s professional relationships, both currently and in the past, as well as his or her history of testifying. In addition, question the expert about any other information you may have obtained in your research relating to that expert, if only to see if the expert provides an honest answer. Such a thorough examination may reveal evidence of both bias and suspect credibility, as in Oliveira v. Jacobson, 846 A.2d 822 (R.I. 2004). There, plaintiff’s counsel was allowed to crossexamine at trial a defense expert about an undisclosed financial relationship with a liability insurance company. The defendant objected, asserting that such questioning would violate R.I. Rules of Evidence 411 (“Liability Insurance”) and would prejudice the jury. The Rhode Island Supreme Court disagreed, holding as follows: The trial justice properly concluded that Dr. Lerner’s professional working relationship with a medical malpractice insurance company and the fact that he failed to disclose that information in his curriculum vitae or in response to a direct question was an impeachable omission not excluded by the provisions of 14–19

§ 14.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Rule 411. The fact that Dr. Lerner was an active advocate or representative of an insurance company and was paid substantial compensation was relevant and probative of his potential for bias. The fact that Dr. Lerner failed to include this information on his curriculum vitae and neglected to mention his employment despite an express question was relevant and probative of his credibility. Oliveira v. Jacobson, 846 A.2d at 824.

§ 14.4.6 Grounds for Excluding or Admitting Trial Testimony It is important to fully develop any potential pretrial challenge to the admissibility of an expert’s opinion. Rhode Island clearly requires a preliminary showing that a Rule 104 hearing to address the admissibility of expert opinion is required. “An ‘appropriate objection or motion’ is one that ‘alert[s] the trial justice to the need for holding a preliminary evidentiary hearing.’” DiPetrillo v. Dow Chem. Co., 729 A.2d 677, 684 (R.I. 1999) (quoting State v. Quattrocchi, 681 A.2d 879, 884 n.3 (R.I. 1996)). Thus, if you have set an objective of potentially filing a Daubert/DiPetrillo challenge and requesting a Rule 104 hearing, be sure that the deposition is sufficient to demonstrate the alleged flaws in the proffered testimony. Keep in mind, however, that Rhode Island law recognizes that such challenges should be reserved for truly “novel” or otherwise seriously flawed scientific theories and methodologies. Owens v. Silvia, 838 A.2d 881 (R.I. 2003). Conversely, in the setting of a pretrial de bene esse deposition for presentation at trial, counsel must be sure to form all questions correctly and fully develop all bases for testimony. Where the foundation is lacking, the deposition transcript and/or video may be inadmissible at trial. In Riley v. Stone, 900 A.2d 1087 (R.I. 2006), the Rhode Island Supreme Court upheld the trial judge’s decision to exclude portions of videotaped deposition testimony of the plaintiff’s expert, where the deposition failed to establish that opinions were provided with the requisite degree of scientific certainty. Thus, when an expert deposition may be used for a specific purpose, such as a preliminary challenge or for viewing at trial, counsel must ensure that the testimony will independently establish the particular procedural requirements. Finally, counsel must realize that an expert may be bound by admissions made during the deposition, even when later-acquired information may have been significant. See Foley v. St. Joseph’s Health Servs., 899 A.2d 1271 (R.I. 2006) (testimony disallowed where an expert admitted at deposition that he was not qualified 14–20

DEPOSING MEDICAL AND TECHNICAL EXPERTS

§ 14.4

to render a particular opinion but attempted to do so at trial on the basis of new information).

§ 14.5

DEFENDING THE EXPERT DEPOSITION

§ 14.5.1 Review All Documents in the Expert’s File Counsel must endeavor to review the expert’s file before the deposition for numerous reasons. First, all documents reviewed and/or relied on by the expert generally must be produced in response to a request for such materials. Second, counsel should ensure that all materials sent to the expert, and therefore reviewed by the expert at some point, are in fact within the file. Such materials may become misplaced in the course of prolonged litigation. If an expert cannot produce an important document at deposition, it may present problems on crossexamination at trial, or conceivably even affect the admissibility of the opinions. Third, as noted above in § 14.3, Rhode Island law holds that the attorney workproduct doctrine still applies to certain documents shared with experts. Crowe Countryside Realty Assocs. Co. v. Novare Eng’rs, Inc., 891 A.2d 838 (R.I. 2006) (attorney work product “is not divested of its absolute protection under Rule 26(b)(3) merely because an attorney shares it with a testifying expert witness”). Finally, an expert may have obtained professional standards, scientific literature, diagrams, or documents unknown to counsel, all of which may be used to support the opinions held. Thus, counsel should carefully scrutinize the expert’s file for any such documents. If any documents are to be withheld from production at the deposition, counsel should be prepared to clearly identify the documents and all privilege claims. This can be done on the record at the deposition, in a formal “privilege log,” or perhaps in writing to opposing counsel afterward, but expect that opposing counsel will want the documents identified at the deposition. Questioning the expert at that time might affect privilege claims. Practice Note Review the expert’s file while keeping in mind the scope of the request made by opposing counsel. Requests for “all documents reviewed and relied on” likely does not include billing statements, correspondence with counsel, and the like. There is no controlling case law in Rhode Island that requires an attorney to simply hand over all the contents of an expert’s file, although it is sometimes appropriate to do so. Attention to detail in reviewing the request for documents and the expert’s file is important.

14–21

§ 14.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 14.5.2 Prepare the Expert An expert has typically been involved in a case for some time prior to the deposition. Attorneys and experts will generally consult with one another long before any deposition is scheduled. The two will share thoughts and opinions as to the strength or weakness of the claim or defense, and review pertinent facts and documents throughout the litigation. Still, it is always a good idea to discuss the case in detail shortly before the deposition to fully prepare the expert and to address the legal standards that will apply. A strong, well-prepared expert can often provide compelling deposition testimony. If the expert provides clear, cogent reasoning with sound support, and shows that he or she will present well at trial, the opposing party may see the benefit of settling. Treat the expert deposition as an opportunity to thoroughly explain the strength of your claim or defense to your opponent. This can generally be accomplished by thorough and active preparation with counsel.

(a)

Form and Certainty of Opinions

Be sure to refresh the expert about the necessary legal thresholds for admissibility. This can range from forming an opinion “to a reasonable degree of medical certainty,” to dealing with materials that “would be customarily and reasonably relied on by other experts,” to causation testimony establishing that a causal event is “a substantial contributing factor,” and more. The elements of the standard of care, causation, and damages must be explained in detail so the expert is aware of the precise issues involved and the language required. Even though the expert has superior knowledge as to the technical issues, that knowledge is of little use unless opinions are expressed in the language required by the law.

(b)

Support for Opinions

Do not rely on your expert to defend his or her position at deposition without testing him or her first. Counsel should understand and be able to convey the opponent’s theory of the case and to explore weaknesses in the opinions of the testifying expert. Explore various facts in relation to the expert’s opinion to determine what factors may cause it to change. If these are discovered, develop counterarguments that still support your claim. This can usually be done by pointing out additional evidentiary support that the expert may have initially not focused on. Preparation is the key, along with thoroughly reviewing and understanding the evidence in the case. Do not be hesitant to bring facts, documents, or deposition testimony to the expert’s attention if they have been overlooked.

14–22

DEPOSING MEDICAL AND TECHNICAL EXPERTS

(c)

§ 14.5

Demeanor

The expert’s demeanor and overall appearance at the deposition will have a significant impact on your opponent’s view of the case. Often, the deposition is taken to simply “get a look” at the testifying expert, given that the expert’s opinions and qualifications have already been disclosed. Accordingly, speak to your expert beforehand about dress, evasiveness, politeness, and demeanor. A wellprepared and technically proficient witness can still create problems merely by displaying a poor attitude or being unreasonably combative. This is especially true where the deposition will be videotaped, which is becoming more common. Consider it your responsibility to prepare the expert. Whether opposing counsel is aggressive or mild, it is the responsibility of the attorney producing the expert to keep him or her in line. The expert has been retained and is being paid a fee for his or her time, and therefore cannot expect much sympathy if he or she vigorously resists cross-examination. In addition, an unnecessarily combative deposition will simply take longer, and may not read or play well to the trial judge if testimony is challenged at trial. It is generally in the interests of all parties to allow the expert to provide direct, concise answers, providing that the expert remains strong on the important central topics.

§ 14.5.3 Consultation and/or Questioning During the Deposition The same deposition rules that apply elsewhere also apply in expert witness depositions. Thus, “speaking objections,” coaching the witness, instructions not to answer without a claim of privilege, and the like are not allowed. See Kelvey v. Coughlin, 625 A.2d 775 (R.I. 1993); Menard v. Blazar, 669 A.2d 1160 (R.I. 1996). Counsel’s role at an expert witness deposition is no different from that of counsel representing any witness at a deposition. Limited consultation with a testifying expert is generally allowed, on the record. Such consultation only relates to minor matters, such as locating a certain document or clarifying a date. Similarly, counsel will have an opportunity to question the witness if necessary. As in any deposition, counsel has an obligation not to present testimony that is untrue. If a misstatement or omission is so significant as to be “untrue,” it should be cleared up. Likewise, although it is too late to correct or retract any damaging concessions made by the expert, it may be possible to elicit additional information that will help support the opinions. There is generally no reason to question your own expert, however, unless you truly need to correct misstatements or bring to the attention of the expert witness something he or she overlooked that is necessary to support the testimony.

14–23

§ 14.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Special thanks are due to the authors of the corresponding chapter in the Massachusetts Deposition Practice Manual (MCLE, Inc. 2nd ed. 2006 & Supp. 2008, 2009): Edward C. Bassett, Jr., Esq.; Michael R. Christy, Esq.; Philip J. Crowe, Jr., Esq.; Elizabeth N. Mulvey, Esq.; and Charles P. Reidy III, Esq., who researched and provided cites for most of the federal court decisions cited in this chapter.

14–24

DEPOSING MEDICAL AND TECHNICAL EXPERTS

EXHIBIT 14A—Excerpts from Rule 26 of the Rhode Island Superior Court Rules of Civil Procedure Rule 26 General Provisions Governing Discovery; Duty of Disclosure (b) Discovery; Scope and Limits. (4) Trial Preparations: Experts. (A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion. (ii) Upon motion the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(c) of this rule, concerning fees and expenses as the court may deem appropriate. A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party. Unless otherwise ordered by the court, the party seeking to depose the expert shall pay the expert the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition. In the absence of agreement between the parties as to the time of disclosures required under the subdivision, any party may apply to the court for an order establishing a schedule of such interrogatories, responses, and depositions. Obligation to respond to interrogatories shall be stayed until the ruling on the application. .

.

.

Committee Note Under the present Rule, when an expert has been identified as an intended witness at trial in response to an interrogatory, further discovery from such expert requires a court order. This amendment authorizes the taking of the deposition of such witness without order of the court and provides for payment of a reasonable fee and expenses to the expert incurred in attending the deposition. This provision does not provide for payment by the deposing party of fees and expenses attendant upon preparation for such deposition unless the court so orders in light of the circumstances. 14–25

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

14–26

DEPOSING MEDICAL AND TECHNICAL EXPERTS

EXHIBIT 14B—Sample Language Requesting That Deponent Bring Documents to Deposition Sample 1 Deponent is to bring with him to the deposition a copy of his curriculum vitae, medical literature reviewed in connection with his work in this case, along with all materials reviewed or relied upon in rendering his opinion and all notes, memoranda or materials prepared by the deponent. Sample 2 The deponent is required to bring with him to the deposition his entire file on this matter including but not limited to any notes, correspondence and copies of medical literature he consulted or relied upon in forming his opinions. Sample 3 The deponent is required to bring with him to the deposition his entire file on this matter including but not limited to any notes, correspondence, copies of medical literature he consulted or relied upon in forming his opinions, any documents that relate in any way to your fees for services as an expert in this matter and any documents constituting, evidencing, referring or relating to any annotations, tabbing or marking made by you or someone on your behalf on any materials relating to this case.

14–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Sample 4 EXHIBIT A 1. Any and all documents and materials that you reviewed or relied on in forming opinions or preparing your report, including any preliminary reports. 2. Any and all notes, memoranda, outlines, summaries, reports or other documents or materials you prepared in forming opinions or preparing your report, including any preliminary reports. 3. Any and all documents that relate in any way to your fees for services as an expert in this matter, including, without limitation, compensation agreements, invoices and time records relating to the amount of time you devoted to this matter. 4. Any and all photographs, diagrams or any other pictorial or graphic representations upon which you rely in formulating your opinions in this matter. 5.

A true and accurate copy of your current curriculum vitae.

6. Any and all medical, scientific or other literature upon which you rely in forming opinions or preparing your report, including any preliminary reports. 7. A list of all cases in which the expert has provided testimony, identifying by court, case name, court number and date and attorneys involved any and all litigation wherein the expert was either a party or testified as a witness. 8. Any and all publications that you have authored which relate in any way to the opinions you have formed in connection with this case. 9. Any and all documents constituting, evidencing, referring or relating to any annotations, underlinings, highlighting, tabbing or marking made by you or someone on your behalf on any deposition transcripts taken in this case or on any medical records relating to this case.

14–28

CHAPTER 15

Audiovisual Depositions Jeffrey M. Padwa William M. White § 15.1

Introduction ........................................................................ 15–1

§ 15.2

Rules of Procedure ............................................................. 15–2 § 15.2.1

§ 15.2.2 § 15.3

§ 15.4

Audiovisual Depositions Under Rhode Island Rule 30(b) ........................................................... 15–2 (a)

Standard Audiovisual Depositions ............. 15–3

(b)

Audiovisual Expert Witness Depositions for Trial ...................................................... 15–5

Audiovisual Depositions Under Federal Rule 30(b) ........................................................... 15–5

When to Consider Videorecording a Deposition ............. 15–8 § 15.3.1

Unavailability of the Witness .............................. 15–9

§ 15.3.2

Special Demonstrations..................................... 15–10

§ 15.3.3

Expert Witnesses ............................................... 15–10

§ 15.3.4

Deterrence Against Subsequently Changed Testimony........................................... 15–10

§ 15.3.5

Settlement...........................................................15–11

Tips for a Successful Deposition.......................................15–11 § 15.4.1

Preparing the Witness.........................................15–11

§ 15.4.2

Selecting the Room ........................................... 15–13

§ 15.4.3

Setting Up the Shot ........................................... 15–13

§ 15.4.4

Points to Keep in Mind During the Deposition ................................................... 15–14 15–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 15.4.5

Mechanics of Playing Videotaped Testimony ....15–15

§ 15.5

Problems with Videorecording Depositions....................15–16

§ 15.6

Digital Technologies ..........................................................15–17

§ 15.7

Additional Resources ........................................................15–17

15–ii

CHAPTER 15

Audiovisual Depositions Jeffrey M. Padwa William M. White

Scope Note This chapter provides guidance on the use of audiovisual depositions under Rules 30 and 32 of the Rhode Island Superior Court Rules of Civil Procedure and Rule 30 of the Federal Rules of Civil Procedure. It begins by discussing the applicable procedural rules and appropriate uses for this technology, and then outlines the steps that should be taken to increase the likelihood of a successful deposition, as well as some potential pitfalls. The chapter concludes with a discussion of the advantages afforded by modern digital recording technologies.

§ 15.1

INTRODUCTION

Video technology is an important development in connection with deposing witnesses. In this summary of Rhode Island and federal rules governing the videorecording of depositions, practitioners will learn in what situations they should consider videorecording a deposition, tips on how to make effective use of videorecording, and some of the drawbacks of placing a witness before a camera during a deposition. In the words of one federal court, “[o]f the available alternatives to producing a live witness at trial, a videotape of the witness’ deposition is doubtless the most likely to approximate what could be expected from his in-court testimony.” Westmoreland v. CBS, Inc., 584 F. Supp. 1206, 1212 (D.D.C. 1984), rev’d on other grounds, 770 F.2d 1168 (D.C. Cir. 1985). Further judicial support for the value of audiovisual depositions has been collected from various decisions in Weiss v. Wayes, 132 F.R.D. 152 (M.D. Pa. 1990). Certainly, nothing compares to the effect of a live witness at trial, but a highquality videorecording can be essential to preserving testimony and dealing with the vagaries of trial scheduling. As technology improves, there may be circum-

15–1

§ 15.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

stances under which the videorecording of a witness becomes the best choice for presentation of evidence at trial.

§ 15.2

RULES OF PROCEDURE

Use of audiovisual depositions in the courts of Rhode Island is generally governed by Super. R. Civ. P. 30(b), and, in federal courts by Fed. R. Civ. P. 30(b). The mechanism for using videotaped testimony of experts at trial in state court is provided by Super. R. Civ. P. 32(a)(3)(E). Rule 30(b)(2) of the Rhode Island Superior Court Rules of Civil Procedure states that depositions may be recorded by sound, sound-and-visual, or stenographic means, unless the court orders otherwise, and that party taking the deposition must state in the notice the method for recording the testimony. The Rule provides also that the party taking the deposition shall bear the cost of the recording. Rule 30(b)(3) of the Federal Rules of Civil Procedure provides that unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means and that the party who notices the deposition must state in the notice the method for recording the testimony. See also Fed. R. Civ. P. 29 which states that by stipulation “a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified,” unless the court orders otherwise, and that “other procedures governing or limiting discovery may be modified” but will require a court order if they extend the time for discovery and would interfere with established deadlines. For an example of a model stipulation for use in federal court, see Balabanian, “Medium v. Tedium: Video Depositions Come of Age,” 7 Litig. 25, 28–29 (Fall 1980), reprinted in 328 PLI/Litig. 285 (1987).

§ 15.2.1 Audiovisual Depositions Under Rhode Island Rule 30(b) Rule 30(b) of the Rhode Island Superior Court Rules of Civil Procedure authorizes videorecordings to record depositions. Prior to the 1995 amendments, the Rhode Island Supreme Court stated in Coffey v. James H. McManus Shoppes of America, Inc., 631 A.2d 833 (R.I. 1993) that allowing videotaped depositions was an entirely separate issue from that of their admissibility at trial. The court ruled that where the witness may not be available at trial, any question of permitting videotapes depositions should be resolved liberally in favor of allowing the depositions

15–2

AUDIOVISUAL DEPOSITIONS

§ 15.2

to be videotaped. Further, the court held that deposition by videotape should be liberally allowed for discovery.

(a)

Standard Audiovisual Depositions

Notice Under Rule 30(b) Rule 30(b) provides that a deposition may be recorded by sound-and-visual means, unless the court orders otherwise. • The party taking the deposition shall state in the notice the method by which the testimony shall be recorded.

Procedure Under Rule 30(b) Rule 30(b)(4) provides that depositions are to be conducted before an officer appointed or designated under Rule 28. However, according to Rule 28, no officer or court appointed person need be present in a videorecorded deposition. Super. R. Civ. P. 28(a). Unless otherwise agreed by the parties, officers should begin videorecorded depositions by making an opening statement on camera, which includes: A.) the operator’s name and business address; B.) the date, time, and place of the deposition; C.) the name of the witness-deponent; D.) the administration of the oath or affirmation to the deponent; and E.) the identification of all persons present. Officers are to repeat the above-listed items A through C at the beginning of each tape, CD, DVD, or other recording medium. At the end of the deposition, officers are to state that the deposition is completed and set forth any stipulations made by counsel concerning the custody of the transcript, recordings, and/or exhibits, as well as any other pertinent matter. Because counsel for the parties are usually more conversant with the case than the officer, counsel may prefer to make the opening statement themselves. During the deposition, objections must be made in the same fashion as they would be made if the proceedings were being recorded solely by stenographic means.

15–3

§ 15.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Rule 30(b)(2) provides that any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means. Super. R. Civ. P. 30(b)(2).

Stipulations Under Rule 29 Rule 29 provides that the parties may stipulate in writing for the recording of videorecorded depositions at any time or place, upon any notice and in any manner. Any such deposition may be used like other depositions. Super. R. Civ. P. 29.

Use Under Rule 32 An audiovisual deposition may be used for the same purposes, and to the same extent, as a stenographic deposition, except as otherwise directed by the court. Super. R. Civ. P. 32(d). Where a party intends to offer videorecorded testimony the party is required to also provide a transcript of the deposition testimony to be offered to the court and to all other parties in advance of trial. When deposition testimony is being presented to a jury other than for impeachment, any party may request the testimony to be presented in videorecorded form, if available, unless the court for good cause orders otherwise. Super. R .Civ. P. 32(d).

Using Videotaped Testimony During Closing Arguments It is within the trial judge’s discretion to allow counsel to show portions of videotaped testimony during closing argument. Judges may permit some, all, or none of the proposed videotaped testimony. See Morgan v. Scott, 291 S.W.3d 622 (Ky. 2009); State v. Muhammad, 820 A.2d 70 (N.J. 2003); Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675 (Ky. 2000); Condella v. Cumberland Farms, Inc., 689 A.2d 872 (N.J. 1996). Courts balance the benefit to the proponent against the possible prejudice to the opposing party. State v. Muhammad, 820 A.2d at 82. Allowing videotaped segments raises a number of pitfalls. Courts are keen to ensure that the videotape segments are not so lengthy as to constitute a second trial that emphasizes only one litigant’s side of the case. Condella v. Cumberland Farms, Inc., 689 A.2d at 875. In addition, courts guard against videotapes that misstate the evidence. Edited videotaped testimony could easily confuse the issues or mislead the jury. Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d at 678–79. When videotaped testimony is allowed during closing arguments, courts may give cautionary instructions. Jurors are instructed that while attorneys are permitted to show the videotaped testimony to assist in highlighting what the attorneys consider to be significant testimony, it is the jury’s function and obligation 15–4

AUDIOVISUAL DEPOSITIONS

§ 15.2

to determine the facts based on its recollection of the evidence, and jurors should not place any extra emphasis on the videotaped segments played back. State v. Muhammad, 820 A.2d at 82. There is recent precedent for using videotape excerpts during closing arguments in Rhode Island’s Superior Court. In Hegarty v. Swider, C.A. No. KC06-0809, Superior Court Associate Justice Clifton allowed plaintiff’s counsel to play excerpts of videotaped expert testimony in final argument. Before closing argument, plaintiff filed a motion for permission to use video excerpts, which asserted that the use of video excerpts that are already in evidence is no different than using photographs, blow ups, or anatomical models, which are commonly used during closing arguments.

(b)

Audiovisual Expert Witness Depositions for Trial

Videorecorded depositions of medical witnesses or any witness called as an expert, other than a party, that are recorded by written stipulation of the parties or pursuant to a court order may be used at trial for any purpose whether or not the witness is available to testify. Super. R. Civ. P. 32(a)(3)(E). This Rule allows a party, by written stipulation of the parties or by court order, to take an audiovisual deposition of the party’s own treating physician or expert witness and to use such deposition at trial regardless of the availability of the deponent at trial. Rule 32(a)(3)(E) provides a party with a way to obtain the videorecorded deposition testimony of the party’s own treating physicians or expert witnesses and to obtain the certainty of the availability of that key testimony at trial, regardless of the availability of the witnesses during trial. Consequently, favorable testimony preserved on a videorecording may encourage a settlement by its impact, early disclosure and guaranteed availability at trial. Furthermore, opposing counsel will need to be fully prepared to cross-examine at the deposition for fear of losing the opportunity to do so at trial.

§ 15.2.2 Audiovisual Depositions Under Federal Rule 30(b) Rule 30(b)(3) through (5) of the Federal Rules of Civil Procedure covers the procedures for deposing witnesses in federal court by videorecording or any other nonstenographic means. Rule 30(b)(3) grants a party noticing a deposition the unilateral right to select the method by which the deposition will be recorded. In fact, the provisions of Rule 30(b)(3) place video and stenographic 15–5

§ 15.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

recording on an equal footing. See Henke & Margolis, “The Taking and Use of Video Depositions: An Update,” 17 Rev. Litig. 1 (1998). Prior to the 1993 amendments, the federal rules had not specifically covered audiovisual depositions. Rule 30(b)(3)(A) provides that [t]he party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition. Fed. R. Civ. P 30(b)(3)(A). See also Fed. R. Civ. P. 30(a), (e), (f). Rule 30(b)(3)(B) allows any party to conduct a videorecorded deposition upon notice even if they are not the party noticing the deponent. Specifically, Rule 30(b)(3)(B) provides as follows: With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise. Rule 30(b)(5)(A) requires that, unless agreed to by the parties, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin with an on-the-record statement that includes (i) the officer’s name and business address; (ii) the date, time, and place of the deposition; (iii) the deponent’s name; (iv) the officer’s administration of the oath or affirmation to the deponent; and (v) the identity of all persons present. Rule 30(b)(5)(B) further requires that [i]f the deposition is recorded non-stenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)–(iii) at the beginning of each unit of the recording medium. The federal Rule does not require that the deposition be timed on camera. Timing the deposition continuously is recommended, however, because it helps to 15–6

AUDIOVISUAL DEPOSITIONS

§ 15.2

prevent tampering and provides parties with an easy way to refer to portions of the deposition. See Balabanian, “Medium v. Tedium: Video Depositions Come of Age,” 7 Litig. 25, 26 (Fall 1980), reprinted in 328 PLI/Litig. 285 (1987). Because the federal Rule largely leaves it to counsel or the court to determine the procedures for taking the deposition by videorecording, attorneys who want advice on what procedures to follow may consult the “Uniform Audio-Visual Deposition Act,” 12 U.L.A. 10 (1991 Supp.). See also Kallen v. Nexus Corp., 54 F.R.D. 610 (N.D. Ill. 1972) (details procedure to be followed for audiotaping depositions); Westcott v. Neeman, 55 F.R.D. 257 (D. Neb. 1972) (court indicates procedures to be followed when taping a deposition); Comment, “Videotape Depositions: An Analysis of Use in Civil Cases,” 9 Cumb. L. Rev. 195, 206–07 (1978). Because of the federal Rule’s brevity prior to the 1993 amendments, the federal Rule has been the cause of some litigation in federal courts. It is apparent, however, that the amendments render moot much of the pre-1993 case law discussing whether video depositions should be permitted. One issue that had been adjudicated in different circuits deserves comment. Prior to the 1993 amendments, Federal Rule 30(b)(4) (found now in amended form at Fed. R. Civ. P. 30(b)(3)) did not specify how much discretion a trial judge should have in determining whether to permit a deposition to be taken by nonstenographic means. In Colonial Times, Inc. v. Gasch, 509 F.2d 517 (D.C. Cir. 1975), the District of Columbia Circuit held that, under Fed. R. Civ. P. 30(b)(4), a judge may deny the moving party’s request to have a deposition audiovisually recorded “only when he is convinced, after thorough examination of the movant’s proposal . . . that the particulars of the request do not reasonably ensure accuracy equivalent to stenographic depositions.” Colonial Times, Inc. v. Gasch, 509 F.2d at 522. In UAW v. Nat’l Caucus of Labor Comms., 525 F.2d 323 (2d Cir. 1975), however, the Second Circuit explicitly disagreed with the court’s restrictive view in Colonial Times: “[W]e believe that Colonial Times misconceives the scope of the district judge’s discretion on Rule 30(b)(4) motions. In the realm of discovery procedure district judges enjoy wide discretion. No reason is suggested in Colonial Times to explain why this discretion should be so constricted when a party moves under Rule 30(b)(4).” UAW v. Nat’l Caucus of Labor Comms., 525 F.2d at 326. The Colonial Times decision subsequently came under implicit criticism from the District of Columbia Circuit itself. In Westmoreland v. CBS, Inc., 584 F. Supp. 1206 (1984), rev’d in part on other grounds, 770 F.2d 1168 (1985), the district court denied CBS the right to videotape the deposition of Ambassador Richard Helms. The court based its decision, not on the accuracy of videotaping the process, but on right-to-privacy grounds. The court cited UAW with approval—

15–7

§ 15.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

a subtle criticism of the narrow view of a judge’s discretion propounded by the Colonial Times court. Other federal courts that have discussed the issue of judicial discretion under the old Fed. R. Civ. P. 30(b)(4) tended to take the expansive view of a trial court’s powers propounded by the Second Circuit. In Barham v. I.D.M. Corp., 78 F.R.D. 340 (N.D. Ohio 1978), for example, the court stated: “In accord with UAW v. National Caucus of Labor Committees . . . this Court believes Colonial Times misconceives the scope of the district judge’s discretion on Rule 30(b)(4) motions. The Court has available in ruling on Rule 30(b)(4) motions the normally wide discretion it has in the realm of discovery procedures.” Barham v. I.D.M. Corp., 78 F.R.D. at 341. See also Roberts v. Homelite Div. of Textron, Inc., 109 F.R.D. 664 (N.D. Ind. 1986). Courts that have determined that a judge has wide discretion in ruling on a Fed. R. Civ. P. 30(b)(4) motion have indicated that, in addition to accuracy, a court considering whether to permit videorecording of a deposition should ask whether the procedure will reduce costs, whether the witness will be available for trial and whether a witness is beyond the court’s subpoena power. The court should also keep in mind the importance of allowing experimentation with new technologies. Barham v. I.D.M. Corp., 78 F.R.D. 340 (N.D. Ohio 1978); Roberts v. Homelite Div. of Textron, Inc., 109 F.R.D. 664 (N.D. Ind. 1986). A lengthy discussion of why there was no abuse of discretion in denying a motion to allow a videotape deposition can be found in Windsor Shirt Co. v. New Jersey Nat’l Bank, 793 F. Supp. 589 (E.D. Pa. 1992). At present, under the current Rule 30(b), parties generally have the option of taking a video deposition as a matter of right, unless an opposing party can show good cause. See Riley v. Murdock, 156 F.R.D. 130 (E.D.N.C. 1994); Gillen v. Nissan Motors Corp., 156 F.R.D. 120 (E.D. Pa. 1994); see also Henke & Margolis, “The Taking and Use of Video Depositions: An Update,” 17 Rev. Litig. 1, 11 (1998).

§ 15.3

WHEN TO CONSIDER VIDEORECORDING A DEPOSITION

As a general rule, consider videorecording a deposition if it will either • improve the means by which information is communicated to the jury or • permit the jury to see or hear evidence to which it would not otherwise have access.

15–8

AUDIOVISUAL DEPOSITIONS

§ 15.3

Also consider videorecording a witness when faced with the following situations. (Several of the points made in this section are found in Kornblum & Short, “The Use of Videotape in Civil Trial Preparation and Discovery,” 23 Am. Jur. Trials 95 (1976)).

§ 15.3.1 Unavailability of the Witness Videorecording a witness’s deposition is appropriate if that person may be unavailable at trial. Under Super. R. Civ. P. 32(a)(3), a deposition may be used for any purpose if the court finds any of the following: • the witness is dead; • the witness is out of state, unless it appears that the absence was procured by the party offering the deposition; • the witness is unable to attend or testify due to age, sickness, infirmity, or imprisonment; or • the party offering the deposition has been unable to procure the attendance of the witness by subpoena. Under Fed. R. Civ. P. 32(a)(4), a witness may be deemed “unavailable” if, at the time the deposition is offered, he or she is any of the following: • deceased; • 100 miles from the place of hearing or trial or out of the country; • unable to appear because of age, illness, or imprisonment; or • not amenable to the court’s subpoena power. In these circumstances, the advantage of a videorecording over a stenographically recorded deposition is clear: when the recording is played in court, the trier of fact has an opportunity to see and hear the deponent, rather than merely having his or her words read by another individual. In New Hampshire, where the local rules of the federal district court state in relevant part that the calendar of the court will not be adjusted to accommodate schedule conflicts of expert witnesses, the U.S. District Court has stated, “[d]epositions by videotape or other methods are easily available and such should be used in any instance where counsel has the slightest doubt as to the availability of any witness at the time of trial.” Nichols v. Estabrook, 741 F. Supp. 325, 330 (D.N.H. 1989). See also Fontaine v. Ebtec Corp., 415 Mass. 309 (1993) (In an age discrimination case, defendants were not entitled 15–9

§ 15.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

to a new trial on the grounds that, due to a scheduling conflict, their principal witness’s testimony was presented through a videotaped deposition.); Frechette v. Welch, 621 F.2d 11 (1st Cir. 1980) (holding lower court erred in allowing defendant, over objection, to use deposition of witnesses without adequate showing that any of conditions of Fed. R. Civ. P. 32(a)(3) were met).

§ 15.3.2 Special Demonstrations Under both Fed. R. Civ. P. 32(a)(4)(E) and Super. R. Civ. P. 32(a)(3)(E), use of the deposition testimony of both party and nonparty witnesses is also allowed where “exceptional circumstances” warrant, even if the deponent is available at the time of trial. Because of this Rule, attorneys should consider videorecording the deposition in any situation where demonstrating something to the trier of fact might be helpful. For example, if counsel needs an expert witness to explain a piece of complex machinery, conduct an experiment or recreate an event, he or she can conduct an audiovisual deposition of the witness at the scene. Counsel should then petition the court under Fed. R. Civ. P. 32(a)(4) or Super. R. Civ. P. 32(a)(3)(E) for the opportunity to introduce the videorecording at the appropriate moment of trial. See Kornblum & Short, “The Use of Videotape in Civil Trial Preparation and Discovery,” 23 Am. Jur. Trials 95 (1976). See also Roberts v. Homelite Div. of Textron, Inc., 109 F.R.D. 664 (N.D. Ind. 1986) (defendant manufacturer had plaintiff recreate accident on videotape to help determine how injury occurred); Carson v. Burlington N. Inc., 52 F.R.D. 492 (D. Neb. 1971) (injured party recreated accident by stenographic and photographic means). See also Carotenuto v. Emerson Elec. Co., Civ. A. No. 89-6298, 1990 WL 198820 (E.D. Pa. Dec. 3, 1990); Moncrief v. Fecken-Kipfel, Civ. A. No. 88-4930, 1988 WL 68088 (E.D. Pa. June 22, 1988) (both approving reenactment, with appropriate safeguards, of operation of machine that caused injury).

§ 15.3.3 Expert Witnesses As discussed earlier, Super. R. Civ. P. 32(a)(3)(E) provides for the use of videorecorded deposition testimony of medical witnesses or any expert witnesses at trial.

§ 15.3.4 Deterrence Against Subsequently Changed Testimony Although depositions are generally videorecorded so that the recording may be introduced in lieu of live testimony at trial, videorecorded depositions can be useful for other reasons. Some attorneys routinely conduct audiovisual depositions 15–10

AUDIOVISUAL DEPOSITIONS

§ 15.3

of witnesses whose testimony is crucial to their case because the witness may change his or her story later. See Kornblum & Short, “The Use of Videotape in Civil Trial Preparation and Discovery,” 23 Am. Jur. Trials 95 (1976). While stenographic deposition transcripts may be used at trial to impeach witnesses by showing changes in the witnesses’ testimony, the use of videotaped deposition recordings for impeachment have the added advantage of also showing changes in a person’s demeanor, facial expressions, eye movement, body language, gestures, voice tonality, and other characteristics. Using videotaped depositions to impeach witnesses who change their testimony can be highly effective. For this reason, videotaped deposition testimony may serve to deter witnesses from changing their testimony.

§ 15.3.5 Settlement Audiovisual depositions can also help to facilitate settlement between the parties. For example, when counsel and clients have an opportunity in personal injury cases to see and hear the plaintiff’s testimony in a deposition, it gives them a better sense of what the injuries may be worth in terms of damages and what their chances of recovering those damages may be at trial. Comment, “Videotape Depositions: An Analysis of Use in Civil Cases,” 9 Cumb. L. Rev. 195, 201–02 (1978); see also Gerson A. Zweifach, “Depositions Under the New Federal Rules,” 23 Litig. 6 (Winter 1997).

§ 15.4

TIPS FOR A SUCCESSFUL DEPOSITION

This section gathers a variety of hints culled from articles, cases, experience, and conversations with other lawyers that are meant to help attorneys prepare for and conduct audiovisual depositions.

§ 15.4.1 Preparing the Witness Preparing a witness for an audiovisual deposition involves the same work as preparing him or her for trial. It is particularly important to keep the following in mind. If possible, prepare the witness with test videorecording sessions before the deposition begins and then review the test recording with the witness. Few witnesses have seen themselves on camera, and the reviewing sessions can be very illuminating. Manner of dress, body language, and tone of voice can often be corrected to eliminate gross or even subtle flaws. 15–11

§ 15.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

While some attorneys suggest that the witness to look directly into the camera— i.e., at the lens itself, other attorneys feel that such an approach makes the witness seem contrived and negatively affects the witnesses’ credibility. Videorecordings exaggerate nervous habits. Therefore, make a special effort to get the witness to relax while giving testimony. Help your witness identify telltale nervous habits before the deposition (drumming the table, playing with his or her hair or a pencil) that you can signal the witness about during the deposition. Videorecordings exaggerate emotions. Although this can work to your advantage—a poignant story may be even more moving on screen—prepare the witness not to get angry or become evasive during aggressive cross-examination because the camera will pick up and magnify undesirable reactions. It is always important to review the questions you intend to ask the witness before he or she testifies, but such preparation is particularly important when the witness is to be filmed. If the witness cannot answer questions promptly, the delay will appear awkward or evasive to the viewer. Balabanian, “Medium v. Tedium: Video Depositions Come of Age,” 7 Litig. 25, 26 (Fall 1980), reprinted in 328 PLI/Litig. 285 (1987); see also John H. Mathias, Jr., David M. Kroeger & Scott T. Schutte, “Lights, Camera, Action: Taking, Defending and Using Video Depositions,” available at http://www.abanet.org/litigation/tips (ABA Litigation Section July 2007). A witness who is extensively prepared for his or her testimony, however, may appear to be bored, and the videorecording will pick up and exaggerate this feeling. One way to prevent the appearance of boredom is to tell the witness, before the deposition begins, that he or she need not answer questions on screen in exactly the same words used while practicing. Having the witness vary his or her language helps give an appearance of spontaneity. For insightful comments from jurors on attorneys’ use of videorecorded testimony, see “Demeanor Counts, But Avoid ‘Pre-Planned’ Answers,” Mass. Law. Wkly., Dec. 11, 2000. Attorneys often coach witnesses on how to dress before trial. Such coaching is especially important in preparing a witness to be videorecorded. Witnesses should avoid loud patterns and bright colors. A solid-color suit is best. Avoid white shirts and blouses, which will glare. Male witnesses should shave shortly before the deposition. In some cases, witnesses should be encouraged to wear contact lenses rather than glasses. Dress your witness for the part—your medical expert, for example, should wear a technician’s coat. If you are the opposing attorney, object to such dress: you do not have to permit your opponent to let his or her witness have a “Marcus Welby” advantage. Consider using makeup for both male and female witnesses. Bright lights cause bald heads and noses to shine, which is easily remedied by light powdering. Most 15–12

AUDIOVISUAL DEPOSITIONS

§ 15.4

witnesses need some coloring to remedy the “drained” look caused by bright lights.

§ 15.4.2 Selecting the Room When selecting the room to use for the deposition, keep in mind the following. • the room must be big enough to accommodate the deponent, counsel, video equipment, and technicians; • the acoustics must be reasonably good; • the room must have sufficiently high and balanced lighting to allow the camera to generate a clear picture. Be alert to shadows in the room that may give the witness a sinister appearance. Balabanian, “Medium v. Tedium: Video Depositions Come of Age,” 7 Litig. 25, 26 (Fall 1980), reprinted in 328 PLI/Litig. 285 (1987); and • white walls in the background make a videorecording look sterile. If the room to be used has white walls, break up the visual field by hanging a picture behind the witness. If possible, select a site that emphasizes the focus of the testimony. For example, place an expert structural engineer in front of drawings, a doctor seated at his or her desk in front of an x-ray viewing screen, or a lawyer in front of law books.

§ 15.4.3 Setting Up the Shot There are four basic camera shots that may be used during videorecording. The following is a summary of an excellent discussion of the different shots that may be used while videorecording depositions that appears in Kornblum & Short, “The Use of Videotape in Civil Trial Preparation and Discovery,” 23 Am. Jur. Trials 95, 153–54 (1976). • A long shot can give a full view of the room being used for the deposition, including the participants. It is especially good for establishing or reestablishing the setting. • A medium shot is used to focus attention on the witness, a portion of the background, and the examining attorney.

15–13

§ 15.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• A close-up focuses only on the witness; the shot may include the head, the neck, and a portion of the chest. • An extreme close-up will show a very limited area—someone’s face or a particular object; it is particularly useful when introducing exhibits. By varying the shots, for example, focusing at appropriate moments on the examiner or the exhibits, the visual monotony that results when the camera is pointed at the witness for several hours can be avoided. Using a zoom shot when a witness is answering is risky, however, because opposing counsel may object on the grounds of undue emphasis. Rule 30(b)(4) provides that the appearance of demeanor of deponents or attorneys shall not be distorted through the camera or sound-recording techniques. Using demonstrative evidence at a videorecorded deposition is particularly effective because the camera gives the exhibit tremendous emphasis with a closeup and refocuses the loss of attention that can occur from a continuous shot of a “talking head.”

§ 15.4.4 Points to Keep in Mind During the Deposition While deposing the witness, keep the following points in mind: • All background noise, including the noise of shuffling papers, must be muffled. This kind of noise may be magnified on the recording and will distract the viewer. Thus, always insist that the operator use clip-on microphones, as opposed to a microphone on a table. Tabletop microphones tend to pick up too much background noise. Mathias, Kroeger & Schutte, Lights, Camera, Action: Taking, Defending and Using Video Depositions, available at http://www.abanet.org/litigation/tips (July 2007). • Try to keep on-camera interruptions to a minimum. To avoid cluttering the videorecording with interruptions, counsel may want to stipulate that all objections (except those as to form) will be reserved. It may also be a good idea to stipulate that either side can suspend the audiovisual recording but that the stenographer will continue to take down conversation unless both sides agree that he or she should stop. This stipulation will prevent videorecording discussions about such matters as lunch breaks or scheduling problems.

15–14

AUDIOVISUAL DEPOSITIONS

§ 15.4

• Avoid having food, drink, and other extraneous items on the table used for the deposition. The jury will not have these items; the witness should not either. • Ask the technician to signal you if recording capacity is running low; this will allow you to pace the examination and avoid having to suspend questioning at critical moments. Attorneys who have videorecorded depositions in which the witness tells a story find that exhibits are best introduced after the testimony is completed or before breaks so that the narrative is not interrupted unnecessarily. When an exhibit is introduced, a close-up should be used so that the viewers will be able to see the exhibit. If the exhibit is a document or a picture, you may want to attach it to a small typing stand or tripod to avoid a shaky camera image. The stand should be positioned next to the deponent so that he or she can work with the exhibit on camera.

§ 15.4.5 Mechanics of Playing Videotaped Testimony Playing videotaped testimony in court requires some advanced planning and preparation, such as the following: • Decide whether the entire videotaped deposition, or only excerpts of it, will be played in court. • Review the transcript for objections that coincide with the parts of the videotaped deposition to be played. • Confer with opposing counsel with regard to which, if any, of the objections will not be pressed. • Because judges vary on the protocol they follow, at the pretrial conference, ask the trial judge how he or she handles videotaped deposition testimony. • Notify the videographer of the protocol to be followed. • Argue and obtain rulings on the objections being pressed. • Instruct the videographer to edit the tape or DVD and provide you with a clean tape or DVD that can be played in court. Editing the tape or DVD in advance allows you to show it at any time during the trial and avoids stopping and starting the tape or DVD, which can be annoying and distracting. 15–15

§ 15.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• Confer with the videographer regarding the positioning of the screen and equipment for optimum viewing by the jury, judge, and counsel. While some courtrooms are equipped with screens and video equipment, many are not. Find out in advance. • Ask the videographer to test the videotaped testimony before playing it to the jury. • Make sure to use a good quality projector, screen, and sound system. The best testimony may lose its impact if poor quality equipment is used.

§ 15.5

PROBLEMS WITH VIDEORECORDING DEPOSITIONS

In a variety of situations, videorecording a deposition may help you present your case more effectively. Videorecording has some obvious pitfalls, however. In New Medico Assocs., Inc. v. Kleinhenz, Judge Skinner expressed the view that while videorecorded depositions may be very useful for expert witnesses, they are less so for fact witnesses, where credibility is an important issue. See New Medico Assocs., Inc. v. Kleinhenz, 750 F. Supp. 1145, 1146 (D. Mass. 1990). Certain witnesses may be especially problematic. Some people do not look natural on camera; others are incapable of relaxing while in front of the camera and therefore appear to the viewer to be shifty, self-conscious, or nasty regardless of how much they are coached. Some attorneys worry about operator bias; unconsciously or not, the technician may present a particular deponent either more or less favorably. Kornblum & Short, “The Use of Videotape in Civil Trial Preparation and Discovery,” 23 Am. Jur. Trials 95, 124 (1976). Remember that videorecorded depositions may take longer to review than those recorded stenographically and require the editing of a copy of the original recording following rulings on objections at a pretrial hearing. Comment, “Videotape Depositions: An Analysis of Use in Civil Cases,” 9 Cumb. L. Rev. 195, 200, 224 (1978). If videotape is used as the recording medium, finding the specific exchange in the deposition to use against a witness’s live testimony can be particularly challenging in light of the time it takes to rewind or fast-forward. If too much of the recording is prepared for use at trial, there is usually no way to easily edit it during trial. Finally, be aware that the party seeking to use the videorecorded deposition at trial is responsible for ensuring that the proper equipment is available in the courtroom. 15–16

AUDIOVISUAL DEPOSITIONS

§ 15.6

§ 15.6

DIGITAL TECHNOLOGIES

The challenge with traditional videotaped depositions is in organizing and editing a witness’s testimony and then presenting the information effectively to juries at trial. Using digital recording and presentation technologies affords superior sound and picture quality and instant retrieval of desired deposition segments. It is possible to assemble a sequence of the choice slices of the deponent’s testimony and create a computer file for trial day. The segments are then bar coded and a list is printed out on paper. With a swipe of an electronic pen, video and text testimony may be retrieved in half a second or less. Should attorneys need additional information stored during trial, a quick keyword search finds the needed statements and a new segment is created. This approach is particularly useful for impeachment of live witnesses. A crossexamining attorney can segment dozens of small extracts from a deposition, presenting one segment at a time and ignoring any segments ruled inadmissible. This is a significant advantage over conventional videotape.

§ 15.7

ADDITIONAL RESOURCES

The following articles on audiovisual depositions are recommended. Balabanian, “Medium v. Tedium: Video Depositions Come of Age,” 7 Litig. 25 (Fall 1980), reprinted in 328 PLI/Litig. 285 (1987). Comment, “Videotape Depositions: An Analysis of Use in Civil Cases,” 9 Cumb. L. Rev. 195 (1978). Henke & Margolis, “The Taking and Use of Video Depositions: An Update,” 17 Rev. Litig. 1 (1998). Kornblum & Short, “The Use of Videotape in Civil Trial Preparation and Discovery,” 23 Am. Jur. Trials 95 (1976). John H. Mathias, Jr., David M. Kroeger & Scott T. Schutte, Lights, Camera, Action: Taking, Defending and Using Video Depositions, available at http://www .abanet.org/litigation/tips (ABA Litigation Section July 2007). Murray, “Videotaped Depositions: Putting Absent Witnesses in Court,” 68 A.B.A.J. 1402 (1982). See also 66 A.L.R. 3d 637; 16 A.L.R. Fed. 969. 15–17

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

15–18

CHAPTER 16

The Recordkeeper Deposition Michael R. Bottaro § 16.1

Introduction ........................................................................ 16–1

§ 16.2

Statutes and Rules Relating to KOR Depositions............ 16–2

§ 16.3

§ 16.2.1

Authority to Issue a Subpoena ............................ 16–2

§ 16.2.2

Subpoena for Production of Documentary Evidence.............................................................. 16–5

§ 16.2.3

Obtaining Medical Records................................. 16–7 (a)

Confidentiality of Healthcare Communications and Information Act.............................................................. 16–7

(b)

Use of Photostatic Copies .......................... 16–9

(c)

Evidence of Charges for Medical and Hospital Services and for Prescription and Orthopedic Appliances—Evidence Required from Hospital Medical Records ............... 16–10

The KOR Deposition Procedure ..................................... 16–14 § 16.3.1

Drafting and Serving the Subpoena Duces Tecum ..................................................... 16–14

§ 16.3.2

Conducting the KOR Deposition ...................... 16–15

EXHIBIT 16A—Sample Cover Letter to Enclose with Subpoena Duces Tecum ......................................................... 16–19 EXHIBIT 16B—Sample KOR Deposition Questions (Records Only) ................................................................................ 16–21 EXHIBIT 16C—Sample KOR Deposition (Live Testimony)...... 16–23 16–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

16–ii

CHAPTER 16

The Recordkeeper Deposition Michael R. Bottaro Scope Note This chapter introduces the reader to the practice and procedure of obtaining discoverable evidence through the use of the deposition directed to the keeper of the records. Discussed are the subpoena duces tecum (the KOR deposition), depositions for documentary evidence, and particular procedures pertaining to medical records.

§ 16.1

INTRODUCTION

In litigation, ensuring that all discoverable documents have been produced is critical. The terms “records” or “documents” are used here interchangeably to refer to a broad array of materials. The following is a suggested catchall definition of “records” or “documents” that may be applied in discovery requests or a keeper of records (KOR) subpoena duces tecum: all written, printed, recorded, graphic or photographic matter, electronic data compilations (including but not limited to correspondence, emails, telegrams, other written communications), contracts, agreements, diaries, memoranda, logs, notes, analyses, reports, charts, forms, brochures, bulletins, work papers, calendars, tape recordings, drawings, catalogues, interviews, affidavits, transcripts, photographs, drawings, blueprints and any other similar matter. Until counsel has reviewed all such information, it is impossible to accurately evaluate the strengths and weaknesses of each party’s position. The recordkeeper deposition, or KOR deposition, is a traditional tool that is used to assist in this endeavor. One initial consideration is whether a KOR deposition is necessary. As a practical matter, if there is no dispute concerning the completeness or authenticity of the documents, counsel may secure a written stipulation executed by both parties. 16–1

§ 16.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Counsel seeking to confirm whether another party’s documents are complete or authentic may propound written discovery, such as requests for admissions under Super. R. Civ. P. 36. As an alternative to or in conjunction with the KOR deposition, Rhode Island law permits counsel to follow specified procedures to obtain and authenticate documents via affidavit. This chapter explores two litigation goals in the context of KOR depositions: obtaining complete records and decreasing the possibility that a tribunal will exclude such records due to hearsay or lack of authenticity.

§ 16.2

STATUTES AND RULES RELATING TO KOR DEPOSITIONS

§ 16.2.1 Authority to Issue a Subpoena Obtaining documents and conducting depositions implicates the power to issue subpoenas. At its essence, the KOR deposition is a subpoena duces tecum. (Duces tecum is Latin for “bring with you,” Black’s Law Dictionary 515 (7th ed. 1999), and is commonly added to a subpoena when counsel commands the deponent to bring documents to the deposition.) The subpoena duces tecum “is the process by which a court requires the production before it of documents, papers, or tangible things. The object of the writ is the production of evidence to be used, so far as admissible, before the court.” Tel. Credit Union of R.I. v. Fetela, 569 A.2d 1059, 1061 (R.I. 1990) (quoting 81 Am. Jur. 2d Witnesses § 14 (1976)). The Rhode Island Superior Court Rules of Civil Procedure address when a subpoena and deposition may occur. Rule 30 refers to depositions and states that depositions may be taken by “any party” without leave of court if taken after thirty days of service. Super. R. Civ. P. 30(a). The party seeking to take a deposition must, inter alia, give reasonable notice to other parties, and if documents are sought, provide a subpoena duces tecum or Rule 34 request. Super. R. Civ. P. 30(b)(1), (5). Rule 45 addresses subpoenas and requires every subpoena to include, inter alia, the “title of the action, the name of the court in which it is pending and its civil action number.” Super. R. Civ. P. 45(a)(1)(C). Thus, Rules 30 and 45 imply that subpoenas and depositions may only occur after suit has been filed. Unless otherwise allowed through an Agency authorized to issue subpoenas, or through a petition to perpetuate testimony per R.I. Gen. Laws § 918-12, a subpoena cannot be issued in the absence of a pending case. The situation may arise where counsel seeks records before litigation has commenced. For example, counsel may need to identify the proper parties to name

16–2

THE RECORDKEEPER DEPOSITION

§ 16.2

before bringing suit. This scenario falls outside of Rule 30 and counsel may have limited options to obtain such records. In some situations, a letter to an entity or individual requesting such information may achieve the objective. There may be other means to consider if counsel seeks other types of records presuit. For example, the federal Health Insurance Portability and Accountability Act (HIPAA) permits patients to obtain their own records through the use of an authorization signed by the patient. Counsel may also consider making a request for records addressed to a public agency or governmental entity pursuant to an applicable state or federal access to records statute. See, e.g., R.I. Gen. Laws c. 38-2 (commonly known as the Access to Public Records Law); 5 U.S.C. § 552 (commonly known as the Freedom of Information Act); and 5 U.S.C. § 552a (the Privacy Act of 1974). But in these situations, counsel may ultimately need to resort to filing suit by naming unknown “John or Jane Does” as parties and seeking such information pursuant to Rules 30, 45, or some other discovery method. The Superior Court Rules of Civil Procedure also address who may issue subpoenas and conduct depositions. Rule 45 of the Rhode Island Superior Court Rules of Civil Procedure addresses subpoenas and provides that subpoenas may only “be issued by the Clerk of Court or a Notary Public or other officer authorized by statute.” Super. R. Civ. P. 45(a)(1)(A). Section 9-17-2 of the Rhode Island General Laws authorizes District Court judges and clerks to issue subpoenas in all pending cases. And R.I. Gen. Laws § 9-17-3 identifies other court officials, justices of the peace, and notaries public who may issue subpoenas in cases and matters pending before them. Auditors, referees, masters in chancery, and commissioners may issue subpoenas to witnesses in all cases and matters pending before them, respectively; and justices of the peace and notaries public may issue subpoenas to witnesses in any case, civil or criminal, before any court, and in any matter before any body or person authorized by law to summon witnesses. R.I. Gen. Laws § 9-17-3. Contrary to its federal counterpart, it does not appear that Rhode Island law provides attorneys with any power per se to independently issue a subpoena in a civil matter. Rule 45(a)(3) of the Federal Rules of Civil Procedure expressly provides that in addition to the clerk of the court, attorneys also may issue and sign a subpoena in their capacity as officers of the court. Rule 45(a)(1)(A) of the Federal Rules of Civil Procedure also provides subpoena power to notaries public. Attorneys in Rhode Island qualify for appointment as notaries public upon admission to the bar. R.I. Gen. Laws § 45-30-5(c). Thus, it appears, at least in 16–3

§ 16.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Rhode Island, that attorneys’ independent authority to issue a subpoena derives from their status as notaries public. Counsel should obtain such appointments in order to provide an express basis for the authority to issue subpoenas. There are many other statutes in Rhode Island providing subpoena power to different types of entities. The standing committees of the General Assembly have subpoena power. R.I. Gen. Laws § 22-6-2.1. Likewise, the Rhode Island Parole Board may issue subpoenas to witnesses and to obtain documents for use during parole revocation hearings. See R.I. Gen. Laws § 13-8-3.1. The commissioner of elementary and secondary education has been given subpoena power during hearings conducted within that department. R.I. Gen. Laws § 16-39-8. The State Board of Elections has also been given subpoena power. R.I. Gen. Laws § 17-78. Within Title 5 of the General Laws, the General Assembly has created governing boards for numerous professions and has given these boards the power to subpoena witnesses and documents for use in official proceedings. See, e.g., R.I. Gen. Laws § 5-1-5(e)(4) (providing subpoena power to the board of examination and registration of architects); R.I. Gen. Laws § 5-3.1-4(i)(4) (providing subpoena power to the Board of Accountancy); R.I. Gen. Laws § 5-8-8(a)(2)(b) (providing subpoena power to the board of engineers); R.I. Gen. Laws § 5-34-25 (providing subpoena power to the board of nurses). These statutes support the notion that subpoenas properly issue during the course of official agency hearings or court proceedings. Indeed, even in the criminal context, the attorney general is powerless to issue a subpoena in the absence of proceedings such as a grand jury proceeding. We remind the state’s prosecutors that the General Assembly has not seen fit to authorize the Office of the Attorney General or the state’s police departments to issue subpoenas for criminal investigations. “The subpoena power of the grand jury is designed for its own use, not to further independent investigations of the prosecutor or police.” DeLaire, 183 Ill. Dec. 33, 610 N.E.2d at 1284. Indeed it is important to remember that the process issued by the grand jury is the process of the court, not the prosecutor. In re Doe, 717 A.2d 1129, 1138–39 (R.I. 1998). Once a valid subpoena has been served on a witness, that witness is statutorily bound to appear, subject to any exceptions carved out in state or federal law, as mentioned in § 16.2.1, below. Section 9-17-5 of the Rhode Island General Laws compels witnesses who are served with a subpoena “in behalf of any party to a suit or proceeding, civil or criminal” to attend and also compels the party serving 16–4

THE RECORDKEEPER DEPOSITION

§ 16.2

the subpoena to provide the witness with a witness fee. However, the Rhode Island Supreme Court has stated that a witness’ obligation to appear remains separate from the requirement that a witness be paid. Consequently, nonpayment of a witness fee would not justify a refusal to appear as ordered. Robinson v. Ridlon, 653 A.2d 730, 731 (R.I. 1995). As a practical matter, a witness receiving a subpoena duces tecum may be unfamiliar with his or her general obligation to appear and to produce documents. Accordingly, it may be worthwhile for counsel to contact the witness and/or entity (or, if appropriate, their legal counsel) before serving the subpoena duces tecum to discuss the matter in further detail. It may be possible to obtain the documents through the use of an affidavit. Counsel may consider serving a cover letter with the subpoena duces tecum, providing the witness with the option of producing the records with an affidavit in lieu of testimony opportunity. As next discussed, some entities are statutorily authorized to provide the requested records with an affidavit in lieu of appearing at the KOR deposition.

§ 16.2.2 Subpoena for Production of Documentary Evidence Section 9-17-5.1 of the Rhode Island General Laws permits the following entities to respond to a subpoena duces tecum by providing the documents in lieu of appearing at the deposition: When a subpoena for the production of books, papers, documents, or tangible things is served on a federal or state agency, public utility, national bank, insurance company, financial institution, or a public or private institution of higher education organized under state or federal laws, it shall be deemed a sufficient response to the subpoena if the employee of the entity charged with the responsibility of being custodian of the original records promptly provides the attorney for the party causing service of the subpoena copies of all documents requested by the subpoena. R.I. Gen. Laws § 9-17-5.1(a).

16–5

§ 16.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

In lieu of appearing, the custodian of records may “promptly” provide counsel with copies of all such requested records and a notarized certificate. R.I. Gen. Laws § 9-17-5.1(a). The notarized certificate should include the language as provided in the statute. Specifically, the certification should include the following language: The copies of records for which this certification is made are true and complete reproductions of the original or microfilmed records which are in the possession of (name of entity). The original records were made in the regular course of business, and it was the regular course of (name of entity) to make such records at or near the time of the matter recorded. This certification is given pursuant to Rhode Island general laws § 9-17-5.1 by the custodian of the records in lieu of his or her personal appearance. Records produced with such a certificate “may be proved as to foundation, identity, and authenticity without any preliminary testimony.” R.I. Gen. Laws § 9-175.1(b). Subsection (b) includes records obtained from a hospital. See also R.I. Gen. Laws § 9-19-39 (use of photostatic copies relating to medical records as discussed herein). In the event that the entity cannot timely respond to the subpoena, the statute also permits an entity from so certifying by setting forth “the specific reasons for the noncompliance, the time of service of the subpoena, and if appropriate the time anticipated in complying with the subpoena.” R.I. Gen. Laws § 9-17-5.1(c). When serving the above-referenced entities with a subpoena duces tecum, counsel should include a cover letter explaining that the entity may provide the documents and certificate (affidavit) in lieu of appearing. To facilitate the matter, also include an affidavit. Included as Exhibit 16A is a sample of such a cover letter and affidavit. In addition to the protections offered to the enumerated entities in R.I. Gen. Laws § 9-17-5.1(c), be aware that there are provisions in federal law that may preempt Rhode Island law. For example, there are specific federal regulations governing the release of information from the U.S. Postal Service. See 39 C.F.R. § 265 et seq. The regulations implement the Freedom of Information Act as a primary means by which to obtain records. 39 C.F.R. § 265.1 to § 265.7. Depending on the records sought, 39 C.F.R. § 265.11 may limit the U.S. Postal Service’s obligations to respond to subpoenas duces tecum issued in a Superior Court case. For example, “If the subpoena involves a job-connected injury, the records are under the exclusive jurisdiction of the Office of Workers’ Compensation Programs, Department of Labor.” 39 C.F.R. § 265.11(3). 16–6

THE RECORDKEEPER DEPOSITION

§ 16.2

Thus, when considering issuing a subpoena duces tecum, it is important to research and understand the potential applicability of federal law that may limit the deponent’s obligation to respond or the jurisdiction of the Superior Court to enforce the subpoena. Similarly, if such law applies, then counsel receiving a subpoena on behalf of a client may consider a motion to quash.

§ 16.2.3 Obtaining Medical Records It cannot be overemphasized that seeking medical records raises significant privacy concerns. Individuals have a constitutionally protected interest in avoiding “disclosure of personal matters,” including medical information. See Whalen v. Roe, 429 U.S. 589, 599 (1977). In addition to any constitutional rights that may be implicated in discovery of an individual’s medical records, Rhode Island has enacted the Rhode Island Privacy Act, R.I. Gen. Laws § 9-28.1-1. The statute provides a civil cause of action for those alleging that their right to privacy has been violated by others. Liu v. Striuli, 36 F. Supp. 2d 452, 479–80 (D.R.I. 1999); Washburn v. Rite Aid Corp., 695 A.2d 495 (R.I. 1997).

(a)

Confidentiality of Healthcare Communications and Information Act

Counsel seeking medical records are wise to familiarize themselves with the Rhode Island Confidentiality of Healthcare Communications and Information Act (the act), R.I. Gen. Laws § 5-37.3-1 et seq. and R.I. Gen. Laws § 9-19-39. The act’s purpose is to “establish safeguards for maintaining the integrity of confidential healthcare information that relates to an individual.” R.I. Gen. Laws § 5-37.3-2. Be sure to read the entire act, including the definitions. See R.I. Gen. Laws § 5-37.3-3. For example, the term “confidential healthcare information” has a specific meaning under the act as follows: “All information relating to a patient’s healthcare history, diagnosis, condition, treatment, or evaluation obtained from a healthcare provider who has treated the patient.” R.I. Gen. Laws § 5-37.3-3(3)(ii). Subject to enumerated exceptions, the act mandates that “a patient’s confidential healthcare information shall not be released or transferred without the written consent of the patient or his or her authorized representative, on a consent form meeting the requirements of subsection (d) of this section.” R.I. Gen. Laws § 5-37.3-4. Notably, the act provides a mechanism for counsel seeking to obtain medical records in a pending case. See R.I. Gen. Laws § 5-37.3-6.1(a). In short, counsel may subpoena medical records directly from a health care provider, provided that counsel certifies to the provider that 16–7

§ 16.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• notice has been given to the patient or patient’s attorney concerning the subpoena and the patient’s right to challenge the subpoena, • twenty days have passed from the date of service on the individual and within that time period the individual has not initiated a challenge, or • the court orders disclosure following a challenge to the subpoena. R.I. Gen. Laws § 5-37.3-6.1(a). Two local practitioners have provided invaluable practice tips for counsel seeking to adhere to the subpoena procedures laid out in the act: In practical terms, the Act requires you to first give notice to the patient or the patient’s attorney that you will be serving a subpoena on a medical provider for the patient’s protected healthcare information (PHI). You must inform the patient or the patient’s attorney that the patient has 20 days notice to challenge the subpoena by filing a Motion to Quash or seek a Protective Order. Once 20 days have passed and the patient has not filed a Motion, then you can serve the subpoena on the medical provider or hospital. At that point, you must certify in writing that you gave the patient 20 days notice and the patient has not objected to the release of the PHI. This certification can be in the form of a letter signed by the attorney requesting the records. The provider cannot release the records without that written certification. Accordingly, do not serve the subpoena until you have provided 20 days notice to the patient and the 20 days has passed. If you do, the subpoena will be procedurally invalid and the provider does not have to respond to it. The best practice is to notice the deposition in forty (40) days, send out the Notice to opposing counsel, and after twenty (20) days have passed, issue the subpoena to the provider and provide the 20 day notice certification to the provider. This will give the provider 20 days to respond according to the date in the Notice of Records Keeper Deposition.

16–8

THE RECORDKEEPER DEPOSITION

§ 16.2

See Linn F. Freedman & Jodi N. Bourque, “Requests for Medical Records: A Practical Guideline,” 55 R.I.B.J. 5, 6 (Jan./Feb. 2007) (discussing other statutory protections afforded to sensitive information sought by subpoenas). Additionally, note that the act “shall not be construed to interfere with any Federal laws or regulations which provide more extensive protection.” R.I. Gen. Laws § 5-37.3-6.3. Thus, depending on the facts of a particular case, counsel should inquire into whether other laws, such as HIPAA, potentially apply to a subpoena duces tecum for medical records. See Linn F. Freedman & Jodi N. Bourque, “Requests for Medical Records: A Practical Guideline,” 55 R.I.B.J. 5, 6 (Jan./Feb. 2007).

(b)

Use of Photostatic Copies

Assuming the aforementioned requirements of R.I. Gen. Laws § 5-37.3-6 have been satisfied, R.I. Gen. Laws § 9-19-39(a) permits counsel to admit photocopies of medical records in lieu of the original records. Section 9-19-39 also permits a health care facility to respond to a subpoena duces tecum by producing records via certificate in lieu of appearing live at a KOR deposition. But note that under this statute, it is counsel, not the health care facility, who holds the option to receive copies in lieu of live testimony. R.I. Gen. Laws § 9-19-39(e). This subpart provides that if counsel seeks live testimony, the subpoena should add the following clause: “The procedure authorized pursuant to R.I. Gen. Laws § 9-19-39 will not be deemed sufficient compliance with this subpoena.” Where counsel does not require live testimony, the facility’s custodian of records shall “promptly” notify counsel of its election to proceed in this manner and shall • hold the originals available at the health care facility; • promptly deliver –

legible and durable copies and

–

a certification; and

• ensure that the certification is signed by the custodian and is notarized, and includes the full name of the patient, the patient’s medical record number, the number of pages in the medical record, and a legend substantially to the following effect: The copies of records for which this certification is made are true and complete reproductions of the original or microfilmed medical records which are housed 16–9

§ 16.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

in (name of health care facility). The original records were made in the regular course of business, and it was the regular course of (name of health care facility) to make such records at or near the time of the matter recorded. This certification is given pursuant to Rhode Island general laws § 9-19-39 by the custodian of the records in lieu of his or her personal appearance. Such copies shall be separately enclosed and sealed in an inner envelope or wrapper bearing the legend “Copies of Medical Records.” Counsel should take note (and alert their office staff) that R.I. Gen. Laws § 9-1939(c) does not permit counsel to simply open the envelope upon receipt. Rather, the records should remain sealed and unopened until “the time of trial, deposition, or other hearing, upon the direction of the judge, court, officer, attorney, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing.” R.I. Gen. Laws § 9-19-39(c). Thus, in practice the deposition would proceed without a deponent. The envelope containing the records may be opened during the deposition with counsel making an appropriate record. Exhibit 16B is a sample script for counsel to use at a KOR deposition where the records have been provided in lieu of live testimony.

(c)

Evidence of Charges for Medical and Hospital Services and for Prescription and Orthopedic Appliances— Evidence Required from Hospital Medical Records

Section 9-19-27 is perhaps the most significant Rhode Island statute that addresses obtaining and using medical records in litigation. It is especially relevant to counsel in the personal injury field. The statute provides that medical records, bills, and reports “subscribed and sworn to under penalties of perjury” by the physician, dentist, or authorized agent “shall be admissible” as evidence of the following: • the fair and reasonable charge for the services; • the necessity of the services or treatment; • the diagnosis of the physician or dentist; • the prognosis of the physician or dentist;

16–10

THE RECORDKEEPER DEPOSITION

§ 16.2

• the opinion of the physician or dentist as to proximate cause of the condition so diagnosed; and • the opinion of the physician or dentist as to disability or incapacity, if any, proximately resulting from the condition so diagnosed. R.I. Gen. Laws § 9-19-27(a). Thus, under its plain terms, R.I. Gen. Laws § 9-19-27 is designed to facilitate the admissibility of existing treatment records. As with all statutes, R.I. Gen. Laws § 9-19-27 has been construed narrowly by the courts. The statute requires that counsel provide at least ten days’ notice to the opposing parties of the intention to offer such evidence. R.I. Gen. Laws § 919-27. Failure to do so may render the affidavit inadmissible. See Andrews v. Masse, 341 A.2d 30 (1975) (reversing a plaintiff jury verdict where defendant did not receive ten-day notice of plaintiff’s affidavit that was entered into evidence); Hudson v. Napolitano, 575 A.2d 187, 188 (1990) (“[T]he providing of a ten-day notice . . . is a condition precedent to the receipt in evidence of Dr. Cichy’s affidavit.”); Jameson v. Hawthorne, 635 A.2d 1167 (1994). The notice must be sent certified mail, return receipt requested, and counsel must then file an affidavit of the notice and the return receipt with the court’s clerk. R.I. Gen. Laws § 9-19-27. Counsel receiving such notice should consider whether to conduct further discovery. The statute does not limit such discovery for the purpose of crossexamination or any other purpose. R.I. Gen. Laws § 9-19-27. If counsel seeks to object to the admitting into evidence of the affidavit, such objection must be made within ten days of receipt of the notice. R.I. Gen. Laws § 9-19-27(d). Significantly, despite the phrase, “shall be admissible,” the trial court may nonetheless exclude such evidence: The substitution of a written affidavit for live medical testimony, however, in no way relaxes the minimum requirements for the admission of competent medical testimony . . . Each affidavit must satisfy the requirements for expert medical testimony on its own and may not rely on separate evidence to supply missing links. Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 355–56 (R.I. 1986); see also Picard v. Barry Pontiac-Buick, Inc., 654 A.2d 690 (1995) (physician’s affidavit that plaintiff’s injury constituted a permanent injury was not clear and unambiguous, and therefore should have been excluded at trial). 16–11

§ 16.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

In Martinez v. Kurdziel, 612 A.2d 669 (1992), the plaintiff provided notice that she intended to offer medical opinion regarding causation from her out-of-state medical providers via affidavits. The defendants objected and filed a motion in limine to exclude such evidence. The defendants contended that they had a right to cross-examine these providers and that the statute’s requirement that defendants bear the cost of traveling out of state to depose the providers violated the defendant’s constitutional rights. Notably, the trial court agreed, concluding that the statute unconstitutionally violated notions of fundamental fairness, due process, and equal protection. Martinez v. Kurdziel, 612 A.2d at 673. On appeal, the Rhode Island Supreme Court reversed, concluding that the statute was constitutional. The court stated that the statute does not foreclose a party’s right to crossexamine witnesses, because the cross-examination may occur at a deposition. Martinez v. Kurdziel, 612 A.2d at 676. One year later, the Rhode Island Supreme Court addressed who bears the cost of taking such a deposition and the scope of the deposition. See Gerstein v. Scotti, 626 A.2d 236 (1993) (party producing expert’s affidavit must pay for the first hour of expert’s time in deposition). Further, compliance with R.I. Gen. Laws § 9-19-27 does not make such evidence automatically admissible, but rather the trial court possesses the authority to determine whether the evidence is objectionable: The statute in the present case, § 9-19-27, does not lessen the offering party’s burden to establish the relevancy and reasonableness standard for evidence. The trial court possesses the authority to determine whether the offered evidence is objectionable. Because the statute does not remove this responsibility from the trial justice, it does not prevent the objecting party from benefiting from the trial court’s determination of whether to admit this testimony. The offering party must still establish a causal relationship between the injury and the physical condition claimed to result from it. All the evidentiary requirements must still be met and are not relaxed in any manner. Martinez v. Kurdziel, 612 A.2d at 676. The use of affidavits expressly relates to treating physicians, not retained experts. In other words, the statute does not allow a party to admit a nontreating expert witness to testify via affidavit. Counsel considering filing objections to the admission of such an affidavit should consider the rules of evidence and applicable case law. For example, in Cuddy v. 16–12

THE RECORDKEEPER DEPOSITION

§ 16.2

Schiavonne, 568 A.2d 1387 (1990), plaintiff’s counsel unsuccessfully sought to admit two medical affidavits. The first affidavit attempted to admit medical records into evidence and was executed by a physician who had since passed away. Despite the affidavit, the records were incomplete on their face. The Rhode Island Supreme Court upheld the trial court’s exclusion of such records because the records were unduly prejudicial to the defendant based on R.I. Rules of Evidence 403. Cuddy v. Schiavonne, 568 A.2d at 1389. Plaintiff’s counsel sought to admit the second affidavit to establish causation. However, the language used in the affidavit did not comport with the applicable causation standard and again, its exclusion was upheld. Cuddy v. Schiavonne, 568 A.2d at 1390. The Cuddy case teaches that counsel seeking to use an affidavit to establish causation should carefully draft the affidavit to include the applicable minimum standard for expert medical testimony. Otherwise, opposing counsel would be wise to object to the affidavit’s admission. In the event that counsel has failed to adhere to the statute, Ouellette v. Carde, 612 A.2d 687 (1992) instructs that medical bills may alternatively be admitted through the business records exception to the hearsay rule, R.I. Rules of Evidence 803(6). In Carde, the court found the affidavit insufficient to admit an opinion on medical causation, but permitted the admission of the affidavit as to the amount of the medical bills. Ouellette v. Carde, 612 A.2d at 692; see also Boscia v. Sharples, 860 A.2d 674, 680 (2004) (“Without authentication, the records are not admissible under Rule 803(6).”). Section 9-19-27 of the Rhode Island General Laws can be a powerful tool when used properly. Not only does the statute permit the use of affidavits to authenticate medical records, but it also permits parties to admit by affidavit expert treating medical opinions found within the records. Counsel may want to consider securing such sworn testimony by affidavit early on in the discovery process and provide it to opposing counsel as a means to facilitate settlement discussions. While the statute requires ten days’ notice to the opposing parties of the intention to offer such evidence, counsel should strongly consider providing notice earlier, especially in cases involving affidavits from out-of-state providers, as in Martinez, or in other cases where opposing counsel may object to the offering of such evidence. Early notice allows time to address any such issues and decreases the likelihood of delaying or continuing trial. Proceeding by affidavit and the use of the medical records may be an effective alternative to the costly and often burdensome process of securing live testimony from medical professionals. For example, the procedure set forth in R.I. Gen. Laws § 9-19-27 may be especially useful in relatively modest personal injury cases filed under the Superior Court Rules Governing Arbitration of Civil Claims. It should be noted that a defending party may also seek to admit its expert medical testimony via affidavit. See, e.g., Gerstein v. Scotti, 626 A.2d 236 (1993). 16–13

§ 16.3

§ 16.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

THE KOR DEPOSITION PROCEDURE

§ 16.3.1 Drafting and Serving the Subpoena Duces Tecum As discussed above in § 16.2.1, Super. R. Civ. P. 45 addresses the form and content of subpoenas. Form 33 of the Rhode Island Superior Court Rules of Civil Procedure provides a subpoena form that complies with Rule 45, including inter alia, providing the mandatory language set forth in Rule 45(c) and (d). The subpoena should be carefully completed and where, as here, counsel seeks the deponent to produce records at the deposition, the appropriate box must be checked and the records sought specified. The Rhode Island Supreme Court has explained that subpoenas duces tecum must be detailed, be reasonable, and seek relevant evidence: In Central Soya Co. v. Henderson, R.I., 208 A.2d 110, we noted that these statutory grants of authority to subpoena records ought to set out the identity of such records with particularity so that the reasonableness of the order would become apparent. Quoting therein from State v. Cooper, 2 N.J. 540, 67 A.2d 298, we noted that: “the subject of a subpoena duces tecum must be specified with reasonable certainty, and there must be a substantial showing that they contain evidence relevant and material to the issue. If the specification is so broad and indefinite as to be oppressive and in excess of the demandant’s necessities, the subpoena is not sustainable.” Grabbert v. Marina Parks, Inc., 221 A.2d 455, 459–60 (R.I. 1966). Because Form 33 only provides one line to specify the records sought, counsel is advised to simply type “See Exhibit A attached” and then attach an Exhibit A that sets forth the documents sought. Drafting the records sought requires the use of crisp, clear, and concise language. It may be helpful to consider not only the records one is seeking, but also the entity itself. That is, obtaining a working knowledge of what type of records an entity typically maintains and how the entity maintains the records will often greatly assist counsel in drafting the subpoena. For example, hospitals invariably have an organized recordkeeping system. Thus, when subpoenaing patient records from a hospital, counsel should learn about this system. Often, the emergency department records are maintained 16–14

THE RECORDKEEPER DEPOSITION

§ 16.3

separately from the inpatient records. Films studies, such as x-rays, MRIs, and the like, are typically kept in a separate department and should be expressly requested when their production is sought. Corporations can only appear as witnesses through their agents, representatives, employees, and the like. Tel. Credit Union of R.I. v. Fetela, 569 A.2d 1059, 1061 (R.I. 1990). Therefore, as a general rule, “a corporate subpoena should issue directly to the officer or employee of the corporation who is the custodian of the records desired.” Tel. Credit Union of R.I. v. Fetela, 569 A.2d at 1061. Counsel for corporations facing potential criminal liability should note that the contents of a corporation’s business records are not privileged under the selfincrimination clause of the U.S. Constitution’s Fifth Amendment. Braswell v. United States, 487 U.S. 99 (1988); In re Grand Jury Subpoena Duces Tecum Served on Allied Auto Sales, Inc., 606 F. Supp. 7 (D.R.I. 1983). Rule 45 of the Rhode Island Superior Court Rules of Civil Procedure also details the mechanics of serving the subpoena duces tecum. Be aware that the subpoena duces tecum should be served and provided to counsel of record pursuant to Super. R. Civ. P. 5. Upon receiving service of the subpoena duces tecum, the nonparty may object pursuant to Super. R. Civ. P. 45(d). The effect of such an objection nullifies the obligation to produce documents and shifts the burden on the issuing party. See Super. R. Civ. P. 45(d). Parties who receive notice of a KOR deposition should consider contacting the noticing counsel before the deposition to determine whether there will be live testimony. If so, counsel should consider attending the KOR deposition to preserve his or her ability to ask questions concerning, for example, the recordkeeper’s background and knowledge.

§ 16.3.2 Conducting the KOR Deposition KOR depositions do not guarantee the admissibility of the documents. But when properly completed, KOR depositions can serve to authenticate documents for admission under the business records exception to hearsay. Conducting a live KOR deposition involves following a script that should be well rehearsed to ensure laying a proper foundation. In doing so, counsel should become reacquainted with the basic hearsay rules and principles that are briefly outlined here. One may recall that hearsay is defined as follows: “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or

16–15

§ 16.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

hearing, offered in evidence to prove the truth of the matter asserted.” R.I. Rules of Evidence 801(c). Certain witness statements and party-opponent statements are not hearsay. R.I. Rules of Evidence 801(d). Hearsay is generally inadmissible, except as provided otherwise by statute or rule, R.I. Rules of Evidence 802, such as the business records exception. See R.I. Rules of Evidence 803(6). A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, another person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. R.I. Rules of Evidence 803(6). The Rhode Island Supreme Court explained the parameters of this exception in Fondedile, S.A. v. C.E. Maguire, Inc., 610 A.2d 87, 93 (R.I. 1992): [T]o be admissible under Rule 803(6), a hearsay business record must satisfy four general requirements. First, the record must be regularly maintained in the course of a regularly conducted business activity. Second, the source of the information must be a person with knowledge. Third, the information must be recorded contemporaneously with the event or occurrence, and fourth, the party introducing the record must provide adequate foundation testimony. Fondedile, S.A. v. C.E. Maguire, Inc., 610 A.2d at 93–94 (citations omitted).. “Adequate foundation” means satisfying the first three elements. Fondedile, S.A. v. C.E. Maguire, Inc., 610 A.2d at 93–94; see also Boscia v. Sharples, 860 A.2d 674, 679–80 (R.I. 2004) (“[r]ecords admitted under Rule 803(6) must be authenticated 16–16

THE RECORDKEEPER DEPOSITION

§ 16.3

through the testimony of the custodian of records or some ‘other qualified witness’”). A “qualified witness” means an individual with some personal knowledge concerning the making and keeping of the records. Fondedile, S.A. v. C.E. Maguire, Inc., 610 A.2d at 93–94. But note that the Rule is not so extreme as to require such a witness to have personally created or stored the records. See, e.g., United States v. Franks, 939 F.2d 600, 602 (8th Cir. 1991) (“Franks is simply incorrect that Rule 803(6) requires that the witness testifying to the documents have personal knowledge of their preparation. ‘Foundation under the business record exception to the hearsay rule may be supplied by a custodian of records or “other qualified” witness who has no personal knowledge regarding the creation of the document.’”). There remains the multiple-level hearsay problem. That is, while cases interpret the meaning of a “business record” broadly, the fact that a document may be considered a “business record” in no way ensures that the record in whole or in part is admissible. The record may be inadmissible for other reasons, including, for example, because there is hearsay within the document itself. See, e.g., 30B Michael H. Gramm, Fed. Prac. & Proc. Evid. § 7047 (interim ed. 2009): An illustration is the report of an ambulance driver incorporating information obtained from a bystander: the driver qualifies as acting in the regular course but the bystander does not. Of course, if the statement by one not under a duty to report, i.e., one not acting in the regular course of business, is not hearsay, is defined as not hearsay or meets the requirements of a hearsay exception, and if the person recording the information is under a duty to do so, the statement, if it meets the other requirements of Rule 803(6), is admissible under Rule 805. Thus if the statement of the bystander meets the requirements of Rule 803(2), excited utterance, and if the ambulance driver was under a business duty to record a statement of that kind, the ambulance report would be admissible. 30B Michael H. Gramm, Fed. Prac. & Proc. Evid. § 7047 (interim ed. 2009) (citations omitted). In conducting a KOR deposition of a live nonparty witness, counsel needs to keep the hearsay definitions and exceptions in mind. The KOR deposition may also be employed against an opposing party by utilizing Fed. R. Civ. P. 30(b)(6). McCulloch v. Hartford Life & Accident Ins. Co., 223 F.R.D. 26 (D. Conn. 2004) (discussing the use of a Rule 30(b)(6) deposition to permissibly conduct a KOR deposition). According to one author, the use of a Rule 30(b)(6) KOR deposition 16–17

§ 16.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

is increasingly more prevalent in light of e-discovery. See Jonathan Sablone, “Not Your Father’s Deposition: Choosing a Witness for the E-Discovery Rule 30(b)(6) Deposition,” available at http://law.lexisnexis.com/litigationnews/articles/article.aspx?groupid=2oKGuUXPxVQ=&article=lzsAAHF71PY= (last visited Mar. 18, 2010). Litigants seem to have more questions to ask opponents concerning how electronic information is acquired, maintained, and destroyed. As to discovery and technology issues, the general rule has been long established that computer data compilations are admissible as business records under Fed. R. Evid. 803(6) if a proper foundation as to the reliability of the records is established. See, e.g., United States v. Croft, 750 F.2d 1354 (7th Cir. 1984). As the issues and law surrounding e-discovery are constantly evolving, counsel should conduct research into the specific issues in a given case. Questions should be focused on establishing the witness’s qualifications and personal knowledge concerning the making and keeping of the records at issue. Counsel should be certain to satisfy each prong of the business records exception, including expressly asking whether the records were “kept in the course of a regularly conducted business activity.” Included as Exhibit 16C is a sample template for conducting such a deposition. See also 30B Michael H. Gramm, Fed. Prac. & Proc. Evid. § 7047 (interim ed. 2009). In litigation, obtaining and reviewing all discoverable documents is an important goal. There may be several means available to achieve this goal. The KOR deposition is one such means that serves as a tool to obtain complete and authentic records from another entity or individual.

16–18

THE RECORDKEEPER DEPOSITION

EXHIBIT 16A—Sample Cover Letter to Enclose with Subpoena Duces Tecum October 2, 2009 VIA PERSONAL SERVICE State of Rhode Island ___________________ Attn: Keeper of Records 48 Orms Street Providence, RI 02903 Re:

Smith v. Jones, et al., C.A. No.: 09-3120 Keeper of Records Deposition

Dear Keeper of Records: Enclosed please find a Subpoena Duces Tecum to obtain testimony and records relating to _____________ (DOB: 00/00/09). We represent _________ in the above-referenced legal case pending in the Rhode Island Superior Court. I enclose a signed medical authorization. In lieu of appearing live at the deposition, you may opt to promptly provide this firm with: (1) complete copies of all such requested records; and, (2) a notarized affidavit in the form enclosed hereto. If you would like to provide the records and affidavit in lieu of appearing at the deposition, please notify me as soon as possible at _____-____. Thank you. Very truly yours,

Leroy Esquire Enclosures

16–19

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

STATE OF RHODE ISLAND PROVIDENCE, SC. _______________________ v. _______________________

SUPERIOR COURT : : : : :

C.A. No. 09-3120

AFFIDAVIT OF KEEPER OF RECORDS I, _____________________________, being first duly sworn, declare and affirm that: 1. I am the authorized keeper or custodian of the records for the State of Rhode Island ____________ and I have authority to certify its records in such capacity. 2. I have received a Subpoena Duces Tecum addressed to the Keeper for Records for the State of Rhode Island ____________ in the above-captioned case. 3. I have reviewed the files of the State of Rhode Island ____________ for all documents responsive to the above-referenced subpoena and enclose responsive records hereto. The attached records are tabbed numbers 1–6 to correspondence to “Appendix A” of the Subpoena Duces Tecum. 4. The copies of records for which this certification is made are true and complete reproductions of the original or microfilmed records which are in the possession of State of Rhode Island _____________. The original records were made in the regular course of business, and it was the regular course of the State of Rhode Island ___________to make such records at or near the time of the matter recorded. This certification is given pursuant to Rhode Island general laws § 9-17-5.1 by the custodian of the records in lieu of my personal appearance. _____________________ Keeper of Records State of Rhode Island _________________ Subscribed and sworn to before me in _________________, Rhode Island on this ____ day of __________________ 2009. _____________________________ Notary Public My Commission Expires:_________ 16–20

THE RECORDKEEPER DEPOSITION

EXHIBIT 16B—Sample KOR Deposition Questions (Records Only) Attny:

This is a keeper of records deposition relating to a subpoena duces tecum that was served upon the addressee and is marked as “Exhibit A.” Notice was provided to all attorneys of record, none of whom are present today. In lieu of a personal appearance, the keeper of records has elected to mail the records to me pursuant to R.I. Gen. Laws § 9-19-39. These records were provided in a sealed envelope which I will open at this time. Enclosed within the sealed envelope is a signed affidavit and fifteen pieces of paper. The records keeper did complete the affidavit indicating that there are fifteen pages of records enclosed. These fifteen pages appear to be the complete set of records produced in compliance with the subpoena. The envelope, affidavit, and records included therein will be marked as “Exhibit B.” We will provide copies of these records to the attorneys of record. This concludes the deposition.

16–21

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

16–22

THE RECORDKEEPER DEPOSITION

EXHIBIT 16C—Sample KOR Deposition (Live Testimony) Attny:

This is a keeper of records deposition as set forth in the subpoena duces tecum, a copy of which is marked as “Exhibit A.” The subpoena was properly served upon the deponent and notice was provided to all attorneys of record, none of whom are present today.

Attny:

Please state your name and employer.

Attny:

What is your job title?

Attny:

Please describe your job responsibilities.

Attny:

Are you here pursuant to the subpoena marked as Exhibit A?

Attny:

You will note that the subpoena was issued to the “keeper of records.” Are you here on behalf of the company in such capacity?

Attny:

Has your employer authorized you to appear today in such capacity?

Attny:

The subpoena commands you to produce certain categories of documents enumerated by separate numbered paragraphs. Have you complied with the subpoena?

Attny:

Is it the company’s regular practice to make the records that you have produced today?

Attny:

Are these records kept in the course of the regularly conducted business?

Attny:

Were the office records originally made “at or near the time” of the date on the records?

Attny:

Were the documents created by the physicians who saw the plaintiff, or from information transmitted by the physician who saw the plaintiff?

Attny:

Were the billing records likewise made “at or near the time” of the date on these records?

Attny:

Were the billing records made by someone in the office with knowledge of such records?

Attny:

Do the itemized bills relate to services actually provided by your office? 16–23

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Attny:

Do the itemized bills represent the “fair and reasonable charges” for these services?

Attny:

Do the medical records include statements made by an injured person to his treating physician relating to his physical condition?

16–24

CHAPTER 17

Rule 30(b)(6) Howard A. Merten Paul M. Kessimian § 17.1

Introduction ........................................................................ 17–1

§ 17.2

The Mechanics of the Rule ................................................ 17–2

§ 17.3

§ 17.4

§ 17.2.1

Text of Rule 30(b)(6)........................................... 17–2

§ 17.2.2

Interpretation of the Rule in Rhode Island .......... 17–3

§ 17.2.3

Differences Between the Federal and State Rules.................................................... 17–3

The Rule 30(b)(6) Notice and Subpoena .......................... 17–4 § 17.3.1

The Deposition Notice ........................................ 17–4

§ 17.3.2

The Deposition Subpoena ................................... 17–4

§ 17.3.3

Duty to Prepare Witness Properly ....................... 17–5 (a)

What Does the Duty Require? ................... 17–5

(b)

Identification and Production of Documents Used to Prepare a Rule 30(b)(6) Witness ............................. 17–6

§ 17.3.4

Designating the Organizational Representative .. 17–9

§ 17.3.5

Matters on Which Examination Is Requested ... 17–10 (a)

Reasonable Particularity........................... 17–10

(b)

What to Do if the Topics Designated Fail to Provide Reasonable Particularity ......... 17–13

The Deposition.................................................................. 17–14 § 17.4.1

Preliminary Matters........................................... 17–14

17–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 17.4.2

§ 17.5

Examination Beyond the Scope of the Notice.......................................................17–15 (a)

Matters Listed in Notice Limit Scope of Examination: Paparelli v. Prudential Insurance Co. of America .........................17–15

(b)

Scope of Rule 30(b)(6) Deposition Is Not Limited to Noticed Matters: King v. Pratt & Whitney ............................17–17

§ 17.4.3

Joint Individual and Rule 30(b)(6) Depositions ........................................................17–19

§ 17.4.4

Questions About Legal Positions or Contentions and the Facts Supporting Them ..................................................................17–20

The Binding Effect of Rule 30(b)(6) Depositions............17–22

EXHIBIT 17A—Sample Notice of Rule 30(b)(6) Deposition.......17–27 EXHIBIT 17B—30(b)(6) Preliminary Matters Checklist............17–29

17–ii

CHAPTER 17

Rule 30(b)(6) Howard A. Merten Paul M. Kessimian

Scope Note This chapter provides an overview of Rule 30(b)(6) and then examines some of the most common and difficult issues that arise in the Rule 30(b)(6) context. It begins with a description of the mechanics of the Rule. It then discusses a number of complex issues that have been handled in conflicting ways by the courts, with the aim of informing counsel of both the status of the law and practical steps counsel may take in light of that law. The chapter concludes with an examination of the law regarding the “binding” effect of Rule 30(b)(6) depositions.

§ 17.1

INTRODUCTION

One of the most potent tools available to litigants in a dispute with a corporation, governmental agency, or other organization is a Rule 30(b)(6) deposition. Pursuant to Super. R. Civ. P. 30(b)(6), a party may depose “a public, private or governmental organization” on matters identified “with reasonable particularity” in a notice or subpoena to that organization. The organization must then designate, in writing, the “officers, directors, or managing agents, or other persons who consent to testify on its behalf.” The designated persons are to testify on matters not only known to the organization but also as to matters reasonably available to the organization. Pursuant to Rule 32, a Rule 30(b)(6) deposition of a party may be used by an adverse party at a hearing or trial for “any purpose.” Rule 30(b)(6) of the Federal Rules of Civil Procedure was enacted in 1970 to • reduce the difficulty in determining whether a particular employee or agent is a “managing agent” (one whose statements could be imputed to the organization); • curb the practice of bandying, “by which officers or managing agents of a corporation are deposed in turn but each disclaims 17–1

§ 17.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

knowledge of facts that are clearly known to persons in the organization and thereby to it”; and • assist organizations that “find that an unnecessarily large number of their officers and agents are being deposed by a party uncertain of who in the organization has knowledge.” Fed. R. Civ. P. 30(b)(6) advisory committee’s note.

§ 17.2

THE MECHANICS OF THE RULE

§ 17.2.1 Text of Rule 30(b)(6) Rhode Island Superior Court Rule of Civil Procedure 30(b)(6) states as follows: A party may in the witness notice or in a subpoena name as the deponent a public, private or governmental organization and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall serve and file, prior to the deposition, a written designation which identifies one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and shall set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules. The following requirements can be derived from the Rule: • a notice of deposition pursuant to Rule 30(b)(6) can be served, naming an organization as the witness to be deposed; • that notice must describe with reasonable particularity the matters on which the examination is requested;

17–2

RULE 30(b)(6)

§ 17.2

• an organization served with such a notice or subpoena must serve and file a written designation that identifies those who will testify on behalf of the organization and on which matters; and • a subpoena to a nonparty organization must advise that nonparty of its duty to designate the individuals who will testify on its behalf and as to which matters.

§ 17.2.2 Interpretation of the Rule in Rhode Island There are relatively few reported Rhode Island decisions on Rule 30(b)(6). In fact, the Rule has not been interpreted in any reported decision of the Rhode Island Supreme Court. There are a small number of reported Rhode Island Superior Court decisions, which will be referred to below where applicable. However, Super. R. Civ. P. 30(b)(6) “substantially tracks the federal model added by amendment in 1970.” Super. R. Civ. P. 30 advisory committee’s note. As such, the Rhode Island Supreme Court would likely apply federal case law in interpreting its provisions. “[The Supreme Court of Rhode Island] has stated previously that where the federal rule and our state rule are substantially similar, [it] will look to the federal courts for guidance or interpretation of our own rule.” Crowe Countryside Realty Assocs. Co. v. Novare Eng’rs, Inc., 891 A.2d 838, 840–41 (R.I. 2006) (in case construing scope of work product doctrine pursuant to Super. R. Civ. P. 26, which was based on 1970 version of corresponding federal Rule, court looked to federal court decisions interpreting federal analog) (quoting Smith v. Johns-Mansville Corp., 489 A.2d 336, 339 (R.I. 1985)).

§ 17.2.3 Differences Between the Federal and State Rules Though Super. R. Civ. P. 30(b)(6) and Fed. R. Civ. P. 30(b)(6) are substantially similar, there are two minor differences of note. First, the federal Rule states that a notice may name “a public or private corporation or a partnership or association or governmental agency.” The Rhode Island Rule substituted the terms “public, private or governmental organization.” This change is minor and was made “simply to recognize that there are more types of entities than private or public corporations or partnership (such as limited liability companies).” Super. R. Civ. P. 30 advisory committee’s note. Second, under the federal Rule, the noticed organization need only make a designation as to the persons who will testify on its behalf and the matters on which they will testify. The Rhode Island Rule, by its terms, would appear to require more. Specifically, the Rule states that the noticed organization “shall serve and file, prior to the deposition, a written designation which identifies [those who 17–3

§ 17.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

will testify on behalf of the organization] and shall set forth, for each person designated, the matters on which the person will testify.” Super. R. Civ. P. 30(b)(6) (emphasis added). As a matter of practice, Rhode Island attorneys do not “file” any such written designation with the court. The practice likely derives from Super. R. Civ. P. 5(d), which provides that discovery requests and responses (including notices of deposition) are not to be filed with the court. Counsel serving deposition notices under Rule 30(b)(6) can and should rely on the language contained in Super. R. Civ. P. 30(b)(6), however, to insist on receiving prior written designation of the witnesses to be proffered and the matters on which each witness will testify. This written designation should, in turn, be made an exhibit at the 30(b)(6) deposition.

§ 17.3

THE RULE 30(b)(6) NOTICE AND SUBPOENA

§ 17.3.1 The Deposition Notice In addition to the information that should be contained in a Rule 30(a) deposition notice, a Rule 30(b)(6) notice should • identify the organization being deposed, • expressly state that the deposition will be conducted pursuant to Rule 30(b)(6), • list the items on which the examination will occur (usually attached as a Schedule A or Exhibit A to the notice itself), and • provide that it is the organization’s duty to present a witness prepared to testify on the matters so identified. See Exhibit 17A for a sample notice of Rule 30(b)(6) deposition.

§ 17.3.2 The Deposition Subpoena A subpoena is not needed to compel the deposition of a party, but should be used when taking the deposition of a nonparty. With respect to a nonparty, if no subpoena is sent and the witness fails to appear, the party who noticed the deposition may be ordered to pay the reasonable expenses incurred (including legal fees) by the parties and attorneys who attended that noticed deposition. Super. R. Civ. P. 30(g)(2). Note that with respect to a nonparty organization served with a 17–4

RULE 30(b)(6)

§ 17.3

subpoena under Rule 45, the subpoena itself must advise that nonparty of its duty to designate the individuals who will testify on its behalf and as to which matters those individuals will testify.

§ 17.3.3 Duty to Prepare Witness Properly (a)

What Does the Duty Require?

Like the federal Rule, pursuant to Super. R. Civ. P. 30(b)(6), the designated representatives of a noticed organization are to testify with respect to designated matters “known or reasonably available to the organization.” When a 30(b)(6) designee speaks, he or she speaks not for himself or herself, but for the entity noticed. As such, “the law is well established that a [Rule] 30(b)(6) deponent [has] an affirmative obligation to educate himself as to the matters regarding the corporation.” Calzaturficio S.C.A.R.P.A., S.P.A. v. Fabiano Shoe Co., 201 F.R.D 33, 36 (D. Mass. 2001). If the person or persons designated by the organization “do not possess personal knowledge of the matters set out in the deposition notice, the [organization] is obligated to prepare the designees so that they may give knowledgeable and binding answers for the [organization].” Calzaturficio S.C.A.R.P.A., S.P.A. v. Fabiano Shoe Co., 201 F.R.D at 36 (citation omitted). “[T]he duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved.” Calzaturficio S.C.A.R.P.A., S.P.A. v. Fabiano Shoe Co., 201 F.R.D at 36 (citation omitted). Moreover, “the designee must not only testify about facts within the corporation’s knowledge, but also its subjective beliefs and opinions,” as well as the corporation’s “interpretation of documents and events.” United States v. Taylor, 166 F.R.D. 356, 360 (M.D.N.C. 1996) (citation omitted). But see § 17.4.3, below. Succinctly, “the designee, in essence, represents the corporation just as an individual represents him or herself at a deposition.” United States v. Taylor, 166 F.R.D. at 360. Given that corporate or organizational knowledge may be located in many documents and across multiple individuals, counsel must take an active role in ensuring that the designated witness is prepared to testify as to what the organization knows about the designated matters and other information reasonably available to it. “Rule 30(b)(6) explicitly requires [an organization] to have persons testify as to all matters known or reasonably available to it and, therefore, implicitly requires persons to review all matters known or reasonably available to it in preparation for the 30(b)(6) deposition.” United States v. Taylor, 166 F.R.D. at 362. Put another way, if the person designated for a matter does not possess all of the corporate information (and the information available to it) on that matter, Rule 30(b)(6) imposes a duty on the corporation to educate its designee 17–5

§ 17.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

so that the designee “may give knowledgeable and binding answers for the corporation.” United States v. Taylor, 166 F.R.D. at 360. In order to comply with this requirement, counsel will often have to prepare the Rule 30(b)(6) designees through the review of reasonably available sources of organizational information, such as documents, past employees, prior witness deposition testimony, deposition exhibits, and other sources. See Calzaturficio S.C.A.R.P.A., S.P.A. v. Fabiano Shoe Co., 201 F.R.D. at 37–39. The designation of a witness who is unprepared to testify and meet the requirements of the Rule can amount to a “failure to appear” under Rule 37 and warrant sanctions. See Resolution Trust Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993) (“When a corporation or association designates a person to testify on its behalf, the corporation appears vicariously through that agent. If that agent is not knowledgeable about relevant facts, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, for all practical purposes, no appearance at all”). The practical effect of the duty to prepare a Rule 30(b)(6) witness (and the potential sanctions for failing to do so) is that a deposing attorney need not settle for nonanswers (e.g., “I don’t know”) to questions in that deposition. Such nonanswers, of course, may be accurate when the organization as a whole does not know the answer or when the answer is not reasonably available to it. A deposing attorney should follow up such nonanswers with questions to determine whether the lack of information is truly reflective of the organization’s lack of available knowledge. If so, such lack of knowledge would not constitute a sanctionable offense. However, if the deponent did not undertake reasonable efforts to ascertain the facts available to the organization (e.g., in a document or known by an agent or employee of the organization), such failure may be sanctionable. Counsel dissatisfied with the adequacy of preparation of a particular designee should seek relief from the court diligently. Failure to do so may prompt the court to deny relief. Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725, 733 (7th Cir. 2004). In turn, the organization’s counsel should consider proffering an alternative witness if the deposition reveals problems with the scope of knowledge of the original designee.

(b)

Identification and Production of Documents Used to Prepare a Rule 30(b)(6) Witness

When preparing a fact witness or expert, there is always a concern that, pursuant to Rule 612 of the Rules of Evidence, the documents used to prepare the witness may have to be produced to the other side. The same danger exists with respect to Rule 30(b)(6) depositions. Rule 612 of the Rhode Island Rules of Evidence 17–6

RULE 30(b)(6)

§ 17.3

provides that if a witness uses a writing to refresh his or her memory before testifying, the document must be turned over to the adverse party unless the court, in its discretion, finds that the burden of production substantially outweighs the likely benefits of production. The Rhode Island Rule is more liberal than the federal Rule, which only allows production of the document if production “is necessary in the interests of justice.” See Fed. R. Evid. 612. In Brokaw v. Davol, Inc., the plaintiffs sought production and identification of the materials used by the defendants to educate and prepare their Rule 30(b)(6) witnesses. Brokaw v. Davol, Inc., C.A. No. 07-5058, 2008 R.I. Super. LEXIS 154, at *9 (R.I. Super. Ct. Dec. 8, 2008). The defendants had already produced about 50,000 pages of documents in the case. The defendants objected to identifying which of those documents they used to prepare the witness. Brokaw v. Davol, Inc., C.A. No. 07-5058, 2008 R.I. Super. LEXIS 154, at *9. Pursuant to R.I. Rules of Evidence 612, the plaintiffs requested that the defendants identify the materials reviewed by the corporate witness before testifying. Brokaw v. Davol, Inc., C.A. No. 07-5058, 2008 R.I. Super. LEXIS 154, at *9. Before addressing the merits, the court analyzed whether the documents were used to refresh recollection and were then subject to Rule 612’s strictures, as under Rule 30(b)(6), documents may be used not only to refresh recollection, but to educate a witness about facts the witness never knew in the first place. Brokaw v. Davol, Inc., C.A. No. 07-5058, 2008 R.I. Super. LEXIS 154, at *11. The court noted that at least some commentators have argued that when a witness reviews a document before testifying for a reason other than to refresh memory, the broader rules of discovery, and not Rule 612, should apply. Brokaw v. Davol, Inc., C.A. No. 07-5058, 2008 R.I. Super. LEXIS 154, at *11 (citing Wright & Gold, “Federal Practice and Procedure,” Federal Rules of Evidence § 6183 at 447–48). The defendants did not argue that the underlying documents were privileged, but that identifying the documents that were actually used to prepare the witness would reveal the attorney’s thought process, which should be protected. Brokaw v. Davol, Inc., C.A. No. 07-5058, 2008 R.I. Super. LEXIS 154, at *13. The defendants asserted that the court should follow the reasoning in Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985) and hold that “the selection and compilation of documents by counsel in the case in preparation of pretrial discovery falls within the highly-protected category of opinion work product.” Brokaw v. Davol, Inc., C.A. No. 07-5058, 2008 R.I. Super. LEXIS 154, at *13 (quoting from Sporck v. Peil, 759 F.2d at 316). The court refused the defendant’s invitation and ordered that the defendants identify the materials reviewed by their 30(b)(6) witness. Brokaw v. Davol, Inc., C.A. No. 07-5058, 2008 R.I. Super. LEXIS 154, at **14– 15. The court noted that the First Circuit had suggested that the reasoning in Sporck was flawed and agreed that identifying the documents reviewed by the 17–7

§ 17.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

designee would not reveal the preparing attorneys’ opinion work product as “the most that can be said from the fact that the witness looked at a document is that someone thought that the document, or some portion of the document, might be useful for the preparation of the witness for his deposition.” Brokaw v. Davol, Inc., C.A. No. 07-5058, 2008 R.I. Super. LEXIS 154, at *14 (citing In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1018 (1st Cir. 1988) (The reasoning in Sporck “is flawed because it assumes that the revelatory nature of the sought-after information is, in itself, sufficient to cloak the information with heightened protection of opinion work product”)). Brokaw raises a number of tactical considerations for both deposing and defending counsel. From the perspective of the party taking the deposition, counsel should demand identification and production of the documents used to prepare the witness. Brokaw authorizes such production and having the documents will assist in questioning. In light of Brokaw, counsel preparing the deponent must be careful when selecting the documents that will be reviewed by any witness, but especially a Rule 30(b)(6) designee. Privileged documents should be shown reluctantly and with the expectation that they will ultimately be turned over to the other side. Further, selecting a small set of key documents is more manageable for the witness. However, it risks exposing counsel’s thought process too directly and leaves the witness subject to attack based on lack of preparedness should other documents be relevant to the designated deposition topics. Selecting too large a set of documents risks overwhelming the witness, who faces substantial work beyond his or her normal job when preparing for such a deposition. On balance, defending counsel and his or her client may be better served by working with a wider selection of documents. A broad approach may be needed to comply with the Rule’s diligent preparation requirement in any event. Also, it will help protect disclosing counsel’s strategy and thought process to opposing counsel. A frank discussion with the witness and the client about the critical nature of the 30(b)(6) deposition, paired with adequate preparation of the witness, can help ameliorate the downsides of reviewing a substantial number of documents with a witness. Counsel should consider keeping a segregated record of which documents the witness reviewed. It is often helpful to give the witness a binder (or binders) of the documents in order to help the witness prepare. Such binders can be brought to the deposition so that they are available to the witness during the deposition. This is particularly important if the 30(b)(6) witness needs to be educated on, and ultimately offer appropriate testimony on, a number of different or complicated topics. The cautionary advice often given to witnesses that they should consider answering, “I don’t know” or “I can’t recall” to questions where they might be unsure of their answers must be used sparingly in the 30(b)(6) context. 17–8

RULE 30(b)(6)

§ 17.3

Such answers raise problems for a corporate client beyond those raised in a normal deposition. Whether to provide binders and/or bring them to a deposition is ultimately a tactical decision counsel must make based on a number of factors, including the complexity of the case, the number of documents involved, the intelligence and dedication of the witness, and the ability of opposing counsel. At a minimum, however, deponent’s counsel should keep a record of what is shown to a 30(b)(6) deponent in the event a discovery dispute arises.

§ 17.3.4 Designating the Organizational Representative It is the duty and prerogative of the noticed party to designate the witness or witnesses responsive to the matters identified in a Rule 30(b)(6) notice. If a party wants to depose particular officers or employees, it must use Rule 30(b)(1). Any person who is willing to testify on behalf of the organization may do so (including but not limited to employees or agents of the organization). Moreover, as the designee is testifying on behalf of the organization as to its knowledge, the witness need not have personal knowledge of the facts related to the case. FCC v. Mizuho Medy Co., 07cv189 MMA (NLS), 2009 U.S. Dist. LEXIS 54032, at **6–7 (S.D. Cal. June 15, 2009) (citing Bd. of Trustees of Leland Stanford Junior Univ. v. Tyco Int’l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008)). The witness likewise need not be a current employee or officer of the corporation. Finally, an organization may designate more than one representative to respond to a 30(b)(6) deposition. Different witnesses may be designated for different categories in the notice. On occasion, counsel may contemplate or propose multiple designees for the same topic. Such designation should be avoided and may well be improper. Recall that one of the purposes behind Rule 30(b)(6) was to avoid “bandying” between multiple witnesses who deny knowledge of information known by the organization. Multiple designees on the same topic pose this risk. Such designations may also run afoul of the requirement that a responding party prepare designees “in order that they can answer fully, completely and unevasively, the questions posed as to the relevant subject-matter.” Calzaturficio S.C.A.R.P.A., S.P.A., v. Fabiano Shoe Co., 201 F.R.D. 33, 36 (D. Mass. 2001) (quotation omitted). The selection of a 30(b)(6) witness is one of the key responsibilities of counsel. Numerous factors must be considered, including the following: • the appearance, presentation, intelligence, and savvy of the potential designee; • the scope of the potential designee’s existing knowledge, and whether that is helpful or harmful; 17–9

§ 17.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• whether the designee has had access to privileged information; • the designee’s availability and willingness to prepare, review documents, meet, and listen to counsel; • the potential designee’s testimonial experience and record; • the likelihood that the potential designee will be deposed whether or not designated as a corporate representative, and further, whether the individual’s testimony would bind the corporation as a practical matter anyway; and • the paper trail connected to the witness. Most critically, as the designee speaks for the organization, the witness must be intelligent and capable. He or she must understand his or her role and the stakes involved. Usually, this points counsel to a more senior member of the relevant management team. Be careful, however, that the person selected has the time available and the commitment to prepare for the deposition. At the outset, counsel should have a specific and frank discussion with the designee and get a commitment from the individual to do the necessary work involved. If necessary, higher-ups in the organization should be enlisted to ensure that this commitment is real and supported by the organization.

§ 17.3.5 Matters on Which Examination Is Requested (a)

Reasonable Particularity

The matters on which an organization is to respond in a Rule 30(b)(6) deposition must be designated with “reasonable particularity” so that the organization can adequately prepare its witnesses to testify on those matters. See Mitsui & Co. (U.S.A.) v. P.R. Water Res. Auth., 93 F.R.D. 62, 66 (D.P.R. 1981) (notices are reasonably particular when they are “sufficient to inform [the noticed organization] of the matters which will be inquired into at the depositions so that [the organization] can determine the identity and number of persons whose presence will be necessary to provide an adequate response to any of [the noticing party’s] potential questions”). The designated matters must also be tied to claims at issue in the case and structured to address questions related to those claims. See Doe v. Yorkville Plaza Assocs., C.A. No. 92 Civ. 8250, 1996 U.S. Dist. LEXIS 8683, at **19–20 (S.D.N.Y. June 21, 1996) (noting that designated matters not limited in time or scope to facts relevant to the case at issue were overly broad, irrelevant, and improper); see 17–10

RULE 30(b)(6)

§ 17.3

also Kent Sinclair & Roger P. Fendrich, “Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(b)(6) and Alternative Mechanisms,” 50 Ala. L. Rev. 651, 662–63 (Spring 1999). Though the parameters of “reasonable particularity” are difficult to determine with exactness and turn on the particulars of a specific case, the standard is not toothless: “to allow [Rule 30(b)(6)] to effectively function, the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000). Some courts have held that a corporation is under no duty to designate corporate representatives when the notice fails to adequately describe the matters on which examination is to be conducted. E.g., Hi-Plains Elevator Mach., Inc. v. Mo. Cereal Processors, Inc., 571 S.W.2d 273, 276 (Mo. Ct. App. 1978) (interpreting an analogous rule and holding that a deposing party needed to comply with the requirement that it describe the matters on which it seeks to depose a corporate entity in order to trigger the entity’s responsibility to designate persons to testify on those matters). “Courts interpret what constitutes ‘reasonable particularity’ in the context of the case at issue.” James C. Winton, “Corporate Representative Depositions in Texas—Often Used But Rarely Appreciated,” 55 Baylor L. Rev. 651, 675 (Spring 2003). Broad or generic deposition notices do not satisfy the reasonable particularity requirement. See Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1057 n.5 (7th Cir. 2000). For example, a designation calling for all information supporting a denial or an averment in a complaint or answer has been deemed too broad and insufficient under the Rule. Skladzien v. St. Francis Reg’l Med. Ctr., C.A. No. 95-1518-MLB, 1996 U.S. Dist. LEXIS 20621, at *2 (D. Kan. Dec. 19, 1996) (a designation that a 30(b)(6) representative testify as to “any statement of fact set forth in the Amended Complaint filed in this action to which defendant has made a denial in its Answer to the Amended Complaint” was too broad and “does not provide with reasonable particularity the matters on which examination is requested”); see also Kent Sinclair & Roger P. Fendrich, “Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(b)(6) and Alternative Mechanisms,” 50 Ala. L. Rev. 651, 662 (Spring 1999). A notice requesting testimony as to a broad swath of documents already produced may also be problematic. See Michilin Prosperity Co. v. Fellowes Mfg. Co., C.A. No. 04-1025, 2006 U.S. Dist. LEXIS 32064, at **5–6 (D.D.C. May 23, 2006) (A matter of inquiry seeking testimony with respect to approximately 2,000 pages of documents produced by the organization deemed not reasonably particular). The designation of the matters upon which testimony is sought is critical to both the deposing and defending party. As the deposing party, counsel must take care to designate topics that are specific enough to elicit the needed testimony and to 17–11

§ 17.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

withstand objection or obfuscation with regard to the scope of required preparation of the witness. Deposing counsel should also carefully consider all matters upon which it may ultimately seek testimony via Rule 30(b)(6) before noticing such a deposition. Pursuant to Super. R. Civ. P. 30(a)(2)(A), leave of court is required to depose a deponent who has already been deposed. Rule 30(a)(2) of the Federal Rules of Civil Procedure contains a similar requirement. There is a split in authority whether that Rule applies to Rule 30(b)(6) depositions. Compare Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 244 F.3d 189 (1st Cir. 2001) (affirming a District Court decision holding that Rule 30(a)(2) requires leave before a corporation can be deposed a second time under Rule 30(b)(6)) with Quality Aero Tech., Inc. v. Telemetrie Elektronik, 212 F.R.D. 313, 319 (E.D.N.C. 2002) (holding that at least where the topics covered in the notices were different, leave was not required for a second Rule 30(b)(6) deposition as “Rule 30(b)(6) depositions are different from depositions of individuals” and nothing in the Rule “restricts a party to a single 30(b)(6) deposition”). In certain circumstances, taking a series of 30(b)(6) depositions makes sense. For example, it has become increasingly common for counsel to use a 30(b)(6) deposition early in a case to explore e-discovery issues and gain an understanding of where and how such records are kept. Similarly, a Rule 30(b)(6) deposition can be an efficient and effective way to explore other preliminary and discrete issues, such as the location or identity of documents or witnesses, damages, specific technical issues, or the like. Counsel, however, should not assume that adversary counsel will agree with this procedure. Consequently, the best practice would be, in cases that warrant it, to either: reach an agreement with opposing counsel as to the number and scope of multiple Rule 30(b)(6) depositions of the same entity; and/or raise the issue by motion or at a conference with the judge and get approval for a phased discovery process (for example, allowing a deposition regarding the storage, retrieval, and nature of electronic documents and, thereafter, a deposition for the same organization on substantive topics after electronic documents have been produced and reviewed). In the right context, even if a court agrees that leave is required, it will grant it. Foreclosure Mgmt. Co. v. Asset Mgmt. Holdings, LLC, C.A. 07-2388, 2008 U.S. Dist. LEXIS 75489 (D. Kan. Aug. 21, 2008). From the perspective of deponent’s counsel, the areas of expected testimony are equally critical. It is these topics that define both the scope of necessary preparation and the binding effect of any testimony on the corporation. Counsel should ensure that the categories reflect discrete, understandable, and manageable areas of inquiry. If counsel does not understand the scope of the expected inquiry, it is a sure bet that opposing counsel and the witness will have differing views as

17–12

RULE 30(b)(6)

§ 17.3

well. Vague or overbroad terms should be clarified or defined. Avoiding confusion helps the witness and the process.

(b)

What to Do if the Topics Designated Fail to Provide Reasonable Particularity

If the matters designated in the 30(b)(6) notice fail to provide reasonable particularity (i.e., the designations make it difficult or impossible to know how to prepare the representative for the deposition), then the best practice is to object to the notice and to communicate that objection to opposing counsel prior to the deposition. Proposing alternative formulations of the noticed matters designed to address the concerns behind the objection and reaching agreement with the deposing counsel is also helpful and may avoid the cost and expense of motion practice. It also shows good faith in the event the matter comes before the court. If any agreements or clarifications are reached or if any objections are made as to the scope of the depositions, it is important that they be reduced to writing and made part of the record of the deposition. Correspondence of counsel should be made exhibits at the outset of the deposition. Not only is an attempt to resolve any dispute regarding the scope of the designated matters good practice, it is required by rule before any motion for protective order can be filed in Rhode Island. Before seeking a motion for protective order, the movant must confer or attempt to confer with the affected parties and must include a certification of their efforts in any motion filed with the court: “[u]pon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court . . . may make an order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Super. R. Civ. P. 26(c) (emphasis added). It is worth noting that in some instances, courts have relied on their broad power to regulate discovery to lay out a framework (in complicated cases) as to the scope of discovery and the extent to which a designee will have to prepare to respond in a Rule 30(b)(6) deposition. See, e.g., Gray v. Derderian, C.A. 04-312, 03-483, 2007 U.S. Dist. LEXIS 94870, at **73–77 (D.R.I. Dec. 28, 2007) (limiting scope of examination with respect to particular Rule 30(b)(6) topics and 17–13

§ 17.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

specifying, specifically, what the witness would and would not have to do to prepare for testifying on those topics). In especially complex cases, it may make sense to broach the issue of discovery in general and Rule 30(b)(6) depositions in particular either via a motion filed under Super. R. Civ. P. 16 or at a conference with the court.

§ 17.4

THE DEPOSITION

§ 17.4.1 Preliminary Matters Deposing counsel should ask a series of preliminary questions at the outset of any 30(b)(6) deposition in order to set the stage for the testimony to come. A brief outline of such preliminary areas of inquiry is provided in Exhibit 17B. At the outset, counsel should mark the deposition notice, subpoena, and the exhibit or schedule confirming the areas of inquiry. Counsel should also mark any correspondence between counsel with respect to witness designation and document production relevant to the deposition. If documents were produced in connection with the deposition or the preparation of the organization’s representatives, counsel should consider making a record of what was provided, whether by marking the documents or, if that is not feasible, identifying them in some other way. Thereafter, deposing counsel should consider asking a series of questions to the witness confirming his or her understanding of the process. The witness should acknowledge that he or she has been designated to speak on certain specified topics and further, is there to speak on behalf of the organization and not just from personal knowledge. Counsel should seek an acknowledgment that the witness understands that he or she has a duty to ascertain all information known or available to the organization that is relevant to the specific topics designated in the 30(b)(6) notice. Further, counsel should ask questions to confirm that the witness has undertaken efforts to ascertain the corporate knowledge, and determine precisely what the witness did, whether the preparation was done entirely at the direction of counsel, or whether the witness undertook any independent investigation. Finally, counsel should attempt to have the witness agree at the outset that he or she has done all of the inquiry and investigation he or she believes is necessary to offer full and complete testimony as to the designated topics.

17–14

RULE 30(b)(6)

§ 17.4

§ 17.4.2 Examination Beyond the Scope of the Notice As discussed above, the deposing party has a duty to describe with reasonable particularity the matters on which examination is requested. The question logically follows—can deposing counsel go beyond the scope of the noticed areas of inquiry and ask the Rule 30(b)(6) deponent questions (and compel answers) unrelated to those areas on the notice? There is no case on point in Rhode Island. Federal courts have split on this issue.

(a)

Matters Listed in Notice Limit Scope of Examination: Paparelli v. Prudential Insurance Co. of America

Deposing Party May Not Inquire as to Matters Outside Scope of Notice In Paparelli v. Prudential Insurance Co. of America, plaintiff’s counsel asked questions of a corporate designee in a Rule 30(b)(6) deposition that were beyond the scope of the subject matter set forth in the notice of deposition. Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. 727, 729 (D. Mass. 1985). Defense counsel objected to the questions and instructed the witness not to answer, and the opposing counsel moved for sanctions. Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 729. Plaintiff’s counsel admitted that the questions were beyond the scope of the subject matter of the Rule 30(b)(6) notice, but maintained that “the subject matter stated in the Rule 30(b)(6) notice does not limit the scope of the deposition and that counsel for the plaintiff can ask a witness produced pursuant [thereto] any question and the witness must answer on behalf of the corporation to the extent that the witness is able.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 729. The court, in reviewing the text of Rule 30(b)(6) and the notes of the advisory committee, observed that “there is nothing which indicates that the ‘matters upon which the examination is requested’ which are listed in a 30(b)(6) deposition notice limit the scope of the examination.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 729. Despite that observation, the court concluded that “such a limitation is implied by the procedure set forth in the rule and the reasons for the rules’ adoption as noted by the Advisory Committee.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 729. The court held that a corporate representative was under no obligation to respond to questions beyond the scope of the notice. Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 730 (“I rule that if a party opts to employ the procedures of Rule 30(b)(6) . . . to depose the representative of a corporation, that

17–15

§ 17.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

party must confine the examination to the matters stated ‘with reasonable particularity’ which are contained in the Notice of Deposition.”). The court based its decision on the following: • In light of the purpose of the Rule to allow a deposing party to obtain information on certain matters from a corporation without having to name the individual within the corporation to be deposed, “it makes no sense for a party to state in a notice that it wishes to examine a representative of a corporation on certain matters, have the corporation designate the person most knowledgeable with respect to those matters, and then to ask the representative about matters totally different from the ones listed in the notice.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 729–30. • The Rule obligates the noticed corporation to prepare a designee to respond to questions on those certain matters in the notice on behalf of the corporation and was designed to “avoid the problem which arose when a party noticed a particular officer of the corporation and the corporation had no way of knowing what matters were going to be the subject of the inquiry and whether the particular officer . . . knew anything about those matters.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 730. “[T]his purpose of the rule would be effectively thwarted, if a party could ask a representative of a corporation produced pursuant [to Rule 30(b)(6)] to testify as to matters which are totally unrelated to the matters listed in the notice and upon which the representative is prepared to testify.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 730. • “[T]he fact that the notice must list the matters upon which examination is requested ‘with reasonable particularity’ also lends weight to the notion that a limitation on the scope of the deposition to the matters specified in the notice is implied in the rule.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 730. If one were to allow a deposing party to ask questions beyond that notice, “the requirement that the matters be listed ‘with reasonable particularity’ would make no sense.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 730. The “matters known or reasonably available to the organization” that the Rule requires a corporate representative to testify about is limited by those “matters upon which examination is requested.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 730.

17–16

RULE 30(b)(6)

§ 17.4

Proper Way to Prevent Such Inquiry Is to Object and Pursuant to Rule 30(d) Suspend Deposition and Seek Protective Order; Instructions Not to Answer Are Inappropriate Though the Paparelli court agreed that such inquiry was precluded by the Rule, the court found that counsel’s instructions to the witnesses not to answer were improper. Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. 727, 731 (D. Mass. 1985). Rule 30(c) requires that “evidence objected to shall be taken subject to objections.” Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 730. Instructions not to answer are appropriate only to protect privilege or trade secrets. Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 730. The court held that the defendant’s counsel should have utilized Rule 30(d) and moved immediately with the court to limit the scope of the deposition. Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. at 731. It is unclear if Fed. R. Civ. P. 30(c)(2)’s provision that allows for instructions not to answer not only to assert a privilege but to present a motion under Rule 30(d)(3) undermines the court’s analysis that an instruction not to answer is improper (as the court recommended suspending the deposition and asserting a Rule 30(d) motion). As Rhode Island contains a similar provision in Rule 30(d)(1) and (3), the same question arises for those who would rely on Paparelli in Rhode Island state court cases, i.e., one may consider using those provisions to support an instruction not to answer in light of the intent to present a motion under Rule 30(d). However, given the Rhode Island Supreme Court’s decision in Kelvey v. Coughlin and its holding that instructions to answer are only proper when used to preserve a privilege, utilizing an instruction not to answer in this context is not recommended. Kelvey v. Coughlin, 625 A.2d 775, 776 (R.I. 1993) (“the only instance, we repeat, the only instance in which an attorney is justified in instructing a deponent not to answer is when the question calls for information that is privileged”). As a practical matter, this warning is particularly important for counsel intending to rely on the substantive holding of Paparelli with respect to the scope of the deposition. Counsel will be hard-pressed to explain why a court should accept the reasoning of the court on that issue but ignore its procedural analysis.

(b)

Scope of Rule 30(b)(6) Deposition Is Not Limited to Noticed Matters: King v. Pratt & Whitney

In King v. Pratt & Whitney, the court was similarly faced with the issue of whether a deponent produced pursuant to Rule 30(b)(6) may only be questioned regarding the topics described in the notice or more broadly, as any other deponent. King v. Pratt & Whitney, 161 F.R.D. 475, 475 (S.D. Fla. 1995). The King court specifically considered the decision in Paparelli and rejected it. King v. 17–17

§ 17.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Pratt & Whitney, 161 F.R.D. at 476. In its eyes, to limit the scope of the deposition to those matters contained in the notice would be impractical, as the deposing party could simply renotice a deponent under the regular notice provisions and ask him or her the same questions as to which objections were lodged. King v. Pratt & Whitney, 161 F.R.D. at 476. The court held that Rule 30(b)(6) is best read as follows: • Rule 30(b)(6) obligates the responding corporation to provide a witness who can answer questions regarding the subject matters listed in the notice. • If the designated deponent cannot answer those questions, then the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions or other restrictions. The corporation has an affirmative duty to produce a representative who can answer questions that are both within the scope of the matters described in the notice and are “known or reasonably available” to the corporation. Rule 30(b)(6) delineates this affirmative duty. • If the examining party asks questions outside the scope of the matters described in the notice, the general deposition rules govern (i.e., Fed. R. Civ. P. 26(b)(1)), so that relevant questions may be asked and no special protection is conferred on a deponent by virtue of the fact that the deposition was noticed under Rule 30(b)(6). • However, if the deponent does not know the answers to questions outside the scope of the matters described in the notice, then that is the examining party’s problem. King v. Pratt & Whitney, 161 F.R.D. at 476. Addressing the concerns raised by Paparelli, the court concluded that the above interpretation did not render the “‘describe with reasonable particularity’ language ‘superfluous’; rather, it imposes an obligation on a corporation to provide someone who can indeed answer the particular questions presaged by the notice. Rule 30(b)(6) does not limit what can be asked at deposition.” King v. Pratt & Whitney, 161 F.R.D. at 476. The approach taken in King has been adopted by most courts that have addressed this issue. Philbrick v. eNom, Inc., 593 F. Supp. 2d 352, 363 n.16 (D.N.H. 2009). To be safe, counsel should prepare witnesses not only for those areas designated in the 30(b)(6) notice, but for all other areas on which they might likely be questioned given their position in the organization and knowledge of underlying facts. As there is no controlling law in Rhode Island, counsel may learn that the court will allow such questions in the middle of the deposition 17–18

RULE 30(b)(6)

§ 17.4

via a phone conference or impromptu hearing. If that occurs, there will be no time to prepare the witness on matters now open for questioning. Further, there often is not a bright line between the deponent’s knowledge and the corporation’s knowledge. Often, the 30(b)(6) deponent is chosen because that individual knows the most about the issues involved. Put simply, it is best that a witness be prepared for any foreseeable questions before the witness is under oath and being deposed. Importantly, counsel for the deponent should take care to maintain an accurate record as to what questions relate to designated and undesignated matters. In preparing the witness, counsel should advise him or her to keep that distinction in mind as well. If questions are posed that are beyond the scope of topics set forth in the deposition notice, the witness can indicate that he or she was not asked to prepare to respond to such questions on behalf of the organization and therefore his or her knowledge on that topic is limited to personal knowledge. In these circumstances, the witness should feel free to respond that, based on his or her own knowledge, he or she does not know the answers to such questions, should that be appropriate and accurate. Deponent’s counsel should object to those questions and “note on the record that answers to questions beyond the scope of the Rule 30(b)(6) designation are not intended as answers of the designating party and do not bind the designating party.” Detoy v. City of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal. 2000). That way, “[p]rior to trial, counsel may request from the trial judge jury instructions that such answers were merely the answers or opinions of individual fact witnesses, not admissions of the party.” Detoy v. City of San Francisco, 196 F.R.D. at 367. This method allows discovery to proceed while preserving the objection and potentially limiting the use of information obtained in a Rule 30(b)(6) deposition related to subject matters beyond the scope of the notice. From the perspective of deposing counsel, one should consider in the face of such objections whether it is worthwhile to ask some foundational questions tying the area of inquiry back to the areas designated in the deposition notice in order to build a record to bind the organization to any proffered answers.

§ 17.4.3 Joint Individual and Rule 30(b)(6) Depositions In many cases, the designated corporate representative will be an individual with firsthand knowledge of the facts and someone who the deposing party would likely depose individually. Often as a matter of practice, the parties will agree to conduct one joint Rule 30(b)(6) and individual deposition. Such a “joint” deposition is convenient and may be conducive to efficiency, but it does result in an individual who is testifying in two distinct capacities—individual and organizational.

17–19

§ 17.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Whether to proceed with such a “joint” appearance presents multiple tactical issues to deposing and defending counsel alike. One must weigh not only cost and efficiency issues, but also the pros and cons of having a potentially vague record with regard to whether particular testimony is based on personal or organizational knowledge. (Depending on the circumstances, this vagueness can be advantageous or disadvantageous.) Also, if two separate depositions are taken, will the possible conflicting answers on similar questions be helpful, harmful, or just plain confusing to the finder of fact? Are two bites at the apple more likely to be helpful or harmful? Particularly from the perspective of counsel who is preparing and defending the 30(b)(6) deponent, it is the rare witness who can keep these two theoretical roles clear in his or her head as he or she is answering questions. The perceived benefits of separate records for the same witness at separate depositions may be difficult to achieve. In some circumstances, therefore, counsel may opt for selecting an effective spokesperson without relevant personal knowledge as the organization’s designee. However, that witness must be prepared to do the work necessary to provide meaningful responses on behalf of the organization. Assuming one is deposing a “joint” personal and organizational witness, for key questions, it may be wise for the questioning attorney to be explicit about whether the question is designed to obtain corporate or individual knowledge. See Sidney I. Schenkier, “Turning the Table: Deposing Corporations and Other Fictive Persons: Some Thoughts on Rule 30(b)(6),” 29 Litig. 20, 25 (Winter 2003) (this distinction is “essential because a witness testifying in an individual capacity is testifying to what the witness personally knows, or said, or heard or did. But a witness testifying as a corporate representative is testifying not to the information that he or she personally knows but to what the corporation knows”). For example, one may want to preface questions designed to obtain the position or knowledge of the organization with the following language: “as the Rule 30(b)(6) representative for X organization” or “when did the X organization learn.” Particularly, where such witnesses deny knowledge or recollection, it may be important for inquiring counsel to remind the witness of his or her role as the corporate representative and inquire as to what steps that witness took as the corporate representative to be in a position to answer such questions.

§ 17.4.4 Questions About Legal Positions or Contentions and the Facts Supporting Them Is it appropriate to ask a Rule 30(b)(6) representative to identify all facts it asserts support a given contention or legal position? Not so surprisingly, this is another area of some disagreement within the federal courts. “Lower courts seem to agree that the attorney-client privilege does not preclude a Rule 30(b)(6) 17–20

RULE 30(b)(6)

§ 17.4

deposition concerning the facts underlying a party’s allegations.” Taylor v. Shaw, C.A. No. 2:04-cv-01668-LDG-LRL, 2007 U.S. Dist. LEXIS 16305, at *8 (D. Nev. Mar. 7, 2007) (quoting United States Equal Employment Opportunity Comm’n v. Caesars Entm’t, Inc., 237 F.R.D. 428, 433 (D. Nev. 2006)). The courts are split, however, over whether the work product privilege protects Rule 30(b)(6) designees from answering questions pertaining to the facts supporting a party’s contentions. Taylor v. Shaw, C.A. No. 2:04-cv-01668-LDGLRL, 2007 U.S. Dist. LEXIS 16305, at *9. In American National Red Cross v. Travelers Indemnity Co. of Rhode Island, the court was faced with the question of whether it was proper for counsel to instruct a Rule 30(b)(6) witness to refuse to answer questions about “‘the facts and documents which [the party] contends supports’ its affirmative defenses.” Am. Nat’l Red Cross v. Travelers Indem. Co. of R.I., 896 F. Supp. 8, 12 (D.D.C. 1995). In that case, more than 200,000 pages of documents had been exchanged during discovery and the court held that the effort in selecting and compiling facts and documents relevant to each separate affirmative defense constituted work product that was shielded from discovery under the work product doctrine: “[i]n cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is often more crucial than legal research.” Am. Nat’l Red Cross v. Travelers Indem. Co. of R.I., 896 F. Supp. at 3 (citing Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986)). Note that this opinion as to what constitutes work product was raised in § 17.3.3(b), above. As stated therein, at least one Rhode Island Superior Court has disagreed that the compilation of documents or facts constitutes attorney work product. However, the court in American National Red Cross held that when counsel requested a description of the “facts and documents which [the party] contends supports” each of its affirmative defenses, deposing counsel “was asking questions that intruded upon protected work product; in effect, what [deposing counsel] was requesting was insight into [the opposing side’s] defense plan.” Am. Nat’l Red Cross v. Travelers Indem. Co. of R.I., 896 F. Supp. at 3. The court in Protective National Insurance Co. v. Commonwealth Insurance took the contrary position and held that a deponent was obligated to provide the factual basis for its allegations, as questions related thereto did not elicit the mental impressions of the party’s lawyers. Protective Nat’l Ins. Co. v. Commonwealth Ins., 137 F.R.D. 267, 281 (D. Neb. 1989). So long as the deposing counsel is seeking only the facts that support the allegations, the work product doctrine was not implicated. Protective Nat’l Ins. Co. v. Commonwealth Ins., 137 F.R.D. at 282. The court also declined ordering the use of contention interrogatories to discover the facts concerning the allegations, as the designated witness was an accountant with sufficient familiarity with the issues implicated in the case and the allegations on which the deposing counsel sought information were 17–21

§ 17.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

not purely legal. Protective Nat’l Ins. Co. v. Commonwealth Ins., 137 F.R.D. at 282; see also Canal Barge Co. v. Commonwealth Edison Co., C.A. No. 98 C 0509, 2001 U.S. Dist. LEXIS 10097, at *6 (N.D. Ill. July 19, 2001) (court rejected objections that questions in Rule 30(b)(6) deposition sought impermissible legal conclusions and stated that “inquiry regarding a corporation’s legal position is appropriate in a Rule 30(b)(6) deposition” and that only when the questions involve complicated legal issues would contention interrogatories be more appropriate). But see J.P. Morgan Chase Bank v. Liberty Mut. Ins. Co., 207 F.R.D. 361, 362 (S.D.N.Y. 2002) (“In a nutshell, depositions, including 30(b)(6) depositions, are designed to discover facts, not contentions or legal theories, which to the extent discoverable at all prior to trial, must be discovered by other means.”). Interestingly, at least one court, in siding with the view articulated in Protective National Insurance, noted that if the inquiry into facts supporting a legal conclusion would be appropriate with a contention interrogatory, “it is not apparent how the same information would be otherwise unavailable through questions posed to a deponent in the course of a deposition.” Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., 218 F.R.D. 29, 34 (D. Conn. 2003). Counsel for deponents should carefully review the areas of proposed inquiry with the issue of work product in mind. If, in counsel’s estimation, a proposed area of inquiry seeks work product or legal conclusions, this may be a proper basis to seek clarification from opposing counsel or, ultimately, instructions from the court prior to the commencement of the deposition. One Rhode Island Superior Court decision, however, has commented that it is rare for the court to preclude a Rule 30(b)(6) deposition in its entirety. That same decision implied that it may be more appropriate to address work product or privilege questions in the context of particular questions posed at the deposition. State v. Lead Indus. Ass’n, C.A. No. 99-5226, 2004 R.I. Super. LEXIS 192, at *3 (R.I. Super. Ct. Nov. 4, 2004).

§ 17.5

THE BINDING EFFECT OF RULE 30(b)(6) DEPOSITIONS

As discussed above, a Rule 30(b)(6) deposition notice requires that an organization produce one or more persons to testify with respect to the matters set out in the notice and to adequately prepare the designees to testify as to the organization’s knowledge or information reasonably available to it: the designees must be prepared “so that they may give, complete, knowledgeable and binding answers on behalf of the corporation.” Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989) (emphasis added) (citations omitted). There is some 17–22

RULE 30(b)(6)

§ 17.5

confusion in the law about how the answers obtained in a Rule 30(b)(6) deposition “bind” the organization. Does it mean more than what Rule 32 provides, i.e., that the deposition can be used against the organization for any purpose? Is it a judicial admission, precluding any attempt to contradict or further elaborate after the deposition is taken? In other words, what does “binding” mean? There are no reported Rhode Island decisions addressing this issue. Most courts appear to hold that the answers are not judicial admissions and that evidence at trial may explain or contradict a statement or position taken at a Rule 30(b)(6) deposition by a designee: It is true that a corporation is bound by its Rule 30(b)(6) testimony, in the same sense that any individual deposed under Rule 30(b)(1) would be “bound” by his or her testimony. All this means is that the witness has committed to a position at a particular point in time. It does not mean that the witness has made a judicial admission that formally and finally decides an issue . . . . Evidence may be explained or contradicted. Judicial admissions, on the other hand, may not be contradicted. W.R. Grace & Co. v. Viskase Corp., C.A. No. 90 C 5383, 1991 U.S. Dist. LEXIS 14651, at **5–6 (S.D.N.Y. Oct. 15, 1991) (emphasis added). In Otis Engineering Corp. v. Trade & Development Corp., which involved improper installation of a natural gas well, the plaintiff’s 30(b)(6) designee testified that the “lower C-ring slip” broke permanently and defendant’s counsel attempted to preclude the plaintiff from testifying at trial that the upper slip, as opposed to the lower slip, was an issue in the case. Otis Eng’g Corp. v. Trade & Dev. Corp., C.A. No. 92-1574, 1994 U.S. Dist. LEXIS 3132, at *2 (E.D. La. 1994). The court concluded that if any party “attempts to materially alter a Rule 30(b)(6) deposition, the opposing party has the ability and the responsibility to cross-examine and impeach the witness using the different, but sworn to, prior testimony. The trier of fact then determines, which, if any, of the testimony to credit.” Otis Eng’g Corp. v. Trade & Dev. Corp., C.A. No. 92-1574, 1994 U.S. Dist. LEXIS 3132, at *2. If there were any prejudice by the attempt to change the testimony, the court said it would be willing to consider extending discovery to allow the prejudiced party to investigate the new claim. See Otis Eng’g Corp. v. Trade & Dev. Corp., C.A. No. 92-1574, 1994 U.S. Dist. LEXIS 3132, at *2. However, other courts have taken a far more draconian view of the term “binding” and have precluded parties from proffering new or different facts or positions than those taken in a Rule 30(b)(6) deposition and have refused to consider 17–23

§ 17.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

affidavits in opposition to a motion for summary judgment that differ from the deposition testimony unless the party “can prove that the information was not known or was inaccessible” at the time of the deposition. See Rainey v. Am. Forest & Paper Ass’n, 26 F. Supp. 2d 82, 94 (D.D.C. 1998). Put another way, these courts appear to treat Rule 30(b)(6) statements as judicial admissions as opposed to evidentiary, factual admissions. In Rainey, the court agreed with a plaintiff who argued that Rule 30(b)(6) precluded the defendant from asserting facts in an affidavit (by another individual who was not the designee) that differed from that articulated by the designated representatives in the deposition. Rainey v. Am. Forest & Paper Ass’n, 26 F. Supp. 2d at 94. The court stated that the plaintiff’s theory is consistent with both the letter and spirit of Rule 30(b)(6) because • the Rule states that the corporate representative shall testify as to matters known or reasonably available to the organization; • that as such, the designee is speaking for the corporation about matters to which it has reasonable access; and • the Rule requires that a designee be prepared to give “binding answers.” Rainey v. Am. Forest & Paper Ass’n, 26 F. Supp. 2d at 94 (citations omitted). The court refused to consider the affidavit and granted summary judgment in favor of the plaintiff. Moreover, the court refused to consider allowing the plaintiff to depose the affiant instead of refusing to consider the affidavit: “[i]f such were the remedy, corporate parties would have every incentive to ‘bandy’ or attempt ‘trial by ambush’ as the only downside to their strategy would be that their adversary might eventually procure access to their theretofore-concealed witness. This incentive structure would eviscerate the force of Rule 30(b)(6) . . . .” Rainey v. Am. Forest & Paper Ass’n, 26 F. Supp. 2d at 96. Analyzing this split, the Seventh Circuit has rejected the Rainey position. See A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630 (7th Cir. 2001). In a case on summary judgment, the party moving for summary judgment asserted that A.I. Credit could not rely on testimony that differed from that in a Rule 30(b)(6) deposition. A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d at 637. The court concluded that Rule 30(b)(6) and its express language that a corporate designee “testify as to matters known or reasonably available to the organization” does not support the argument that the Rule “binds” a corporate party unless the “corporation shows that contrary information was not known to it or available.” A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d at 637. “Nothing in the advisory committee notes indicates that the Rules go so far.” A.I. Credit Corp. v. Legion Ins. 17–24

RULE 30(b)(6)

§ 17.5

Co., 265 F.3d at 637. The court specifically rejected the reasoning of Rainey and cited two other District Court cases that had taken the different view. A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d at 637 (citing Indus. Hard Chrome, Ltd. v. Hetran, Inc., 92 F. Supp. 786, 791 (N.D. Ill. 2000) (“testimony given at a Rule 30(b)(6) deposition is evidence which, like, any other deposition testimony, can be contradicted and used for impeachment purposes”) and United States. v. Taylor, 166 F.R.D. 356, 362 n.6 (M.D.N.C. 1996) (Rule 30(b)(6) deposition testimony does not bind corporation in sense of judicial admission)). Given this split in authority (and the lack of any relevant case law from Rhode Island), there exists the potential for Rainey preclusion of later contrary or additional evidence. As a result, should an answer be incomplete or incorrect, the best practice is to seek to supplement the information provided at the deposition as soon as practicable. See Ierardi v. Lorrilard, Inc., C.A. No. 90-7049, 1991 U.S. Dist. LEXIS 11887, at **8–9 (E.D. Pa. Aug. 23, 1991) (finding that a claim of ignorance at a Rule 30(b)(6) deposition by a designee would preclude the presentation of evidence on the same subject at trial and noting that pursuant to Fed. R. Civ. P. 26(e)(2), there is a duty placed on parties to amend a discovery response if incorrect when made or if no longer true); see also James C. Winton, “Corporate Representative Depositions in Texas—Often Used But Rarely Appreciated,” 55 Baylor L. Rev. 651, 731 (Spring 2003) (“Whether or not the wording of Rule 26(e)(2) in fact applies to corporate representative depositions of its own force, the extension of the duty (and right) timely to supplement prior responses during a corporate representative deposition works in favor of the corporate party, allowing it to provide additional information as discovery progresses, additional facts are revealed and theories develop.”).

17–25

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

17–26

RULE 30(b)(6)

EXHIBIT 17A—Sample Notice of Rule 30(b)(6) Deposition STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC.

SUPERIOR COURT

DOE, INC. v.

C.A. No. 09-0000

ABC CORP. NOTICE OF RULE 30(b)(6) DEPOSITION TO: All Counsel And Parties Please take notice that, pursuant to Rhode Island Superior Court Rule of Civil Procedure 30(b)(6), the plaintiff Doe, Inc. will take the deposition upon oral examination of ABC Corporation, by and through its designated representative(s) on the matters set forth in the attached Schedule A on September 20, 2009 at 1:00PM at the office of Smith & Davis, 100 Kennedy Lane, Providence, RI 02903 before a Notary Public or some other person authorized by law. The deponent is required pursuant to Rule 30(b)(6) to designate one or more officers, directors or managing agents, or other person(s) who consent to testify on its behalf and to set forth for each person designated the matters upon which the person may testify. By the terms of Rule 30(b)(6), the person so designated shall testify as to matters known or reasonably available to ABC Corporation. The deposition shall continue day to day until completed. You are invited to attend and take part as is permitted under law. Respectfully submitted, DOE, INC. By Its Attorneys, SMITH & DAVIS _____________________ Attorney name (Bar #) Address Telephone DATED: August 20, 2009 17–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

CERTIFICATION I hereby certify that a copy of the foregoing NOTICE OF RULE 30(b)(6) DEPOSITION was mailed, postage prepaid, on this __ day of August, 2009 to: _____________________

SCHEDULE A 1.

The terms, conditions, negotiations, and communications regarding the lease dated September 1, 2001 between Doe, Inc. and ABC Corp. (the “Lease”).

2.

ABC Corp.’s management of the leased premises from September 1, 2001 to the termination of the Lease.

3.

The termination of the Lease.

4.

Communications regarding ABC Corp.’s decision to terminate the Lease.

5.

Communications between ABC Corp. and Doe, Inc. regarding the Lease.

6.

Any environmental issues or concerns, and any discussions and communications regarding such concerns with regard to the Leased Premises.

17–28

RULE 30(b)(6)

EXHIBIT 17B—30(b)(6) Preliminary Matters Checklist ❑

Mark the deposition notice and/or subpoena, including Schedule A

❑

Mark any correspondence or notice respecting the designation of witnesses

❑

Mark any correspondence clarifying the scope of the deposition

❑

Mark any correspondence concerning any requests for records reviewed or relied on by the deponent

❑

Mark any documents provided by the deponent

❑

Confirm this as a 30(b)(6) deposition

❑

Confirm that the witness understands: ❑

That this is a deposition of the organization

❑

That the witness is the representative of the organization

❑

That the witness speaks for the organization

❑

That the witness’s testimony will bind the corporation

❑

Confirm the specific areas upon which the witness has been designated

❑

Confirm that the witness is actually prepared to testify on those specific topics

❑

❑

With respect to his or her own knowledge

❑

With respect to all matters reasonably known or available to the organization

For each topic separately, inquire as to: ❑

What the witness did to prepare

❑

What documents the witness reviewed ❑

Who supplied or chose the documents

❑

Whether the witness independently searched for documents 17–29

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

❑

17–30

❑

Whether the witness needs to look at any other documents in order to offer full and complete testimony

❑

That the witness does not know of any documents relevant to the designated topic that he or she has not reviewed

To whom the witness spoke as part of his or her preparation and why ❑

Whether he or she took notes of any such conversations

❑

Who chose or decided with whom the witness should speak

❑

Whether the witness independently decided with whom to speak

❑

That the witness does not need to speak with anyone else in order to speak on behalf of the corporation.

CHAPTER 18

Deposing Accountants and Economists Jack A. Cacchiotti, Jr. Mark W. Freel Raymond M. Ripple Manuel R. Smith § 18.1

Deposing Accountants........................................................ 18–1 § 18.1.1

Introduction ......................................................... 18–1

§ 18.1.2

Witness, Defendant, or Expert?........................... 18–2

§ 18.1.3

Preliminary Matters............................................. 18–3

§ 18.1.4

§ 18.1.5

§ 18.1.6

(a)

Which Accountants to Depose ................... 18–3

(b)

Time Period of Inquiry............................... 18–4

(c)

Which Engagement .................................... 18–4

Documents .......................................................... 18–6 (a)

Recordkeeper Versus Rule 30(b)(6) Deposition .................................................. 18–6

(b)

Content and Organization .......................... 18–6

(c)

Original Versus Copies............................... 18–7

(d)

Scope of Questioning ................................. 18–7

Substantive Deposition of the Accountants........18–11 (a)

Preparation with Your Own Expert ...........18–11

(b)

Deciding Whom to Depose .......................18–11

(c)

Scope of Deposition ..................................18–11

Conclusion ........................................................ 18–15 18–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 18.2

Deposing Economists ........................................................18–15 § 18.2.1

Introduction........................................................18–15

§ 18.2.2

Preparing for the Deposition ..............................18–16 (a)

The Information ........................................18–16

(b)

The Expert ................................................18–17

(c)

The Economist’s Expert Opinion..............18–18

§ 18.2.3

Deposition Strategy............................................18–19

§ 18.2.4

Conclusion .........................................................18–21

EXHIBIT 18A—Checklist of Information Needed for Economic Appraisal ..................................................................18–23

18–ii

CHAPTER 18

Deposing Accountants * and Economists Jack A. Cacchiotti, Jr. Mark W. Freel Raymond M. Ripple Manuel R. Smith

Scope Note This chapter discusses depositions of accountants and economists. Among the topics addressed are the handling of work papers and other documents, the scope of the deposition, and applicable privileges. Unique strategies and approaches for getting the best result from deposing both accountants and economists are featured in this chapter. Included as an exhibit is a checklist of information needed for economic appraisal.

§ 18.1

DEPOSING ACCOUNTANTS

§ 18.1.1 Introduction As with the deposition of any witness, the key to a successful deposition of an accountant is preparation and adequate consideration of the purpose for the deposition. Is the accountant a fact witness? Is the accountant an expert? Or is the accountant a party to the litigation? While preparation for the deposition of the accountant is crucial, the accountant’s role in the litigation will impact significantly the scope of the preparation and the ultimate goal of the deposition. In addition to cases where accountants are alleged to have engaged in professional negligence, accountants also appear with increasing frequency in litigation involving

* The authors and MCLE acknowledge and thank Andrew W. Rainer, Esq., author of Chapter 14 of the Massachusetts Deposition Practice Manual, © 2006, 2008 MCLE, Inc., which work has served as a model for this chapter.

18–1

§ 18.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

shareholder disputes, business valuations, and corporate disputes involving fraud, trade secrets, or unfair competition.

§ 18.1.2 Witness, Defendant, or Expert? The manner in which an attorney prepares for the deposition will depend on whether the accountant is a fact witness, defendant, or expert witness. If the accountant is a fact witness and you want his or her cooperation, you must consider how areas of inquiry or formal discovery may impact that cooperation. For example, suppose (to use the earlier example) that the results of the defendant’s operations are at issue. You may want to depose the accountant who last audited the company’s financial statements to learn the accounting methods used to determine whether an item was properly expensed or deducted so that your own accounting expert can impeach the defendant’s accounting practices. You may decide to obtain the accounting firm’s professional evaluations of the individuals who worked on the audit, the results of peer review of the audit, if any, or the firm’s practice in supervising and training junior staffers. You may decide to question the accountants about compensation received for their auditing services, their investments in the defendant corporation, or the existence of other business relationships between the accountants and the defendant because such facts might be useful to impeach the accountants if they testify for the defendant. If you do, you should remember that asking an accountant for information that is potentially incriminating or embarrassing, or that relates to his or her own internal operations may signal to the accountant, as with any nonparty witness, that he or she may ultimately become a defendant in the litigation. In such circumstances, the attorney is likely to lose the accounting firm’s cooperation. If you are sure that an accountant is a witness only, and will not be a defendant, you can save time and expense by keeping the scope of your inquiry focused on the defendant and not the accountant’s conduct of the audit. On the other hand, if you claim that your client relied on the accountants’ opinion about the defendant’s financial statements and that the accountants were negligent, or that the accountants participated in a fraud, then all relevant areas of inquiry, including those discussed above, will be worth pursuing. Note that in Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 190 (1994), the U.S. Supreme Court held that there is no liability for aiding and abetting a violation of Section 10(b) of the Securities and Exchange Act of 1934. Congress elected not to restore aiding and abetting liability when it passed the Private Securities Litigation Reform Act (PSLRA) in December 1995, Pub. L. No. 104-67. However, an accountant can still be held liable as a primary actor under Section 10(b), assuming the Section 10(b) liability requirements are 18–2

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.1

met. Moreover, Congress did impose an additional statutory duty on accountants auditing publicly held companies to use procedures to detect illegal acts that would materially affect the companies’ financial statements. Counsel deposing an accountant for a public company as a fact witness should consider inquiring as to what steps were taken to comply with this requirement, and what information was obtained as a result. Counsel should also inquire about when audit partners were rotated on a company’s account, and whether the auditors performed any work for the company besides auditing. Additional areas for inquiry are suggested by the Sarbanes-Oxley Act, which imposes limits on the type of work accountants can perform for audit clients, requires a regular rotation of audit partners on corporate accounts, and increases criminal penalties for fraud in corporate disclosures. See 15 U.S.C. § 78j-1. When preparing to depose another party’s accounting expert, the concerns relating to alienation of the witness do not apply. However, sufficient planning will be required in order to ensure that the attorney has the requisite information, including answers to expert-related interrogatories and requests for production of documents, to make the expert deposition worthwhile.

§ 18.1.3 Preliminary Matters (a)

Which Accountants to Depose

You may want to depose a previous accountant as well as the accountant who conducted the audit that is the subject of your case. For example, if you are litigating over the purchase of a business where the value of inventory was a variable in the price, you may learn that the seller corporation changed accountants shortly prior to the sale. You may have reason to believe the change of accountants resulted from a difference of opinion between the prior accountants and the client over the treatment of inventory, or that there was a management letter relating to inventory that the client found unacceptable. If so, the prior accountants may have information about past problems with inventory valuation that will provide insight into current problems. Further, because accountants are required to consult with prior accountants before accepting an engagement, you may find that the new accountants knew or should have known about the inventory problems but nevertheless failed to identify the problem in their audit or reflect it in their opinion letter. With this in mind, you should carefully review the timing, extent, and content of the current accountants’ communications with the prior accountants. These communications should be reflected in the successor accountants’ work papers, which is a good place to start your investigation. You should also find out your client’s history with accountants generally.

18–3

§ 18.1

(b)

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Time Period of Inquiry

The time period of your inquiry is obviously controlled by the facts alleged in the complaint. However, the accounting practices and patterns at issue in your case may have been put in place some time ago, even at the beginning of the accountant-client relationship. For this reason, evidence relevant to intention, knowledge, or scienter may not show up in the particular accounting period at issue. You should always ask for the accountants’ permanent file relating to the client—not merely the documents relating to the particular accounting engagement at issue. Other documents (especially management letters, representation letters from the client, and the like) should be obtained for all years in which the client employed the accountant. For example, if inventory controls were a problem for five years running, you can be fairly sure that obsolete inventory, at the least, is an issue you should investigate. There may also have been changes in management letters or client representations over the years that could alert you to a possible problem. Further, with respect to time period, remember that preparation for a year-end audit customarily takes place before the end of the year under audit. Important correspondence relating to an audit for the year ended January 31, 2000, for example, may be in a chronological correspondence or notes file for 1999. Thus, if the audit for the year ended January 31, 2000, is at issue, be sure to request all documents generated or exchanged in calendar year 1999 as well as 2000.

(c)

Which Engagement

Before deposing an accountant, it is critical to confirm the type of work papers you are focusing on. For example, are they accounting work papers, audit work papers, papers relating to a review, papers relating to consulting or business advice, or papers relating to a planning engagement? All of these accounting engagements have their own rules and professional standards that will govern the accountant’s conduct and his or her potential liability. Equally important, an accountant may be involved in more than one engagement for the client during the relevant period, all of which may be a source of information important to your case. For example, if past performance charts included in a prospectus are challenged as fraudulent, you will want to know whether those charts were prepared, audited, or reviewed by the accountant. You will want to examine all work papers and inquire fully about that engagement, with the proper standards firmly in mind. However, work papers relating to an accountant’s “review” of charts may provide an incomplete picture of the facts of the case. If the accountant also audited the company’s financial statements for the years in question, the audit work papers may provide supplemental or even contradictory information that will be invaluable to you. Similarly, a consulting engagement may provide key 18–4

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.1

information about the true state of the client’s affairs or the state of the accountant’s knowledge of his or her affairs at a material time. When trying to establish accountant liability, be careful to differentiate between the responsibilities of accountants in “auditing” a company’s financial statements and those entailed in “reviewing” financial statements. Companies often ask the accountants who audit their annual financial statements to review some or all of the entries in the company’s interim or quarterly financial statements. The accountants’ responsibilities in conducting such reviews differ significantly from their responsibilities in conducting an audit. For example, in a case charging accountant malpractice, an accountant conducting a review (as opposed to an audit) of financial statements may not be held to generally accepted auditing standards (GAAS), and certainly will not be expected to exercise the same amount of independent judgment as an accountant who is conducting an audit of the company’s books. Similarly, as a result of the Supreme Court’s decision in Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164 (1994), an accountant may be held liable under the securities laws for statements made in audited annual financial statements but not for statements made in interim quarterly financial statements, even where those statements were extensively reviewed by the accountant. See In re Kendall Square Sec. Litig., 886 F. Supp. 26 (D. Mass. 1994); Van de Velde v. Coopers & Lybrand, 899 F. Supp. 731, 738 (D. Mass. 1995) (noting, however, that an accountant could be held liable for conspiracy if he or she actually participated in the preparation of false financial statements); see also Dismore v. Suadron, Ellenoff, Plesent, Sheinfeld & Sorkin, 135 F.3d 837 (2d Cir. 1998) (holding that, in order to be held liable for conspiracy, secondary actors must satisfy the requirements for primary liability). The Second Circuit Court of Appeals has held that accountants also have a duty to correct statements that were made in certified financial statements if they later learn that the statements are wrong. See Overton v. Todman & Co., CPAs, P.C., 478 F.3d 479 (2d Cir. 2007). Under Overton, an accountant or accounting firm can be held liable if it • makes a statement in its certified opinion that is false or misleading when made, • subsequently learns or was reckless in not learning that the earlier statement was false or misleading, • knows or should know that potential investors are relying on the opinion and financial statements, and yet

18–5

§ 18.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• fails to take reasonable steps to correct or withdraw the opinion and/or the financial statements. Overton v. Todman & Co., CPAs, P.C., 478 F.3d at 486–87. The First Circuit Court of Appeals has not yet addressed this issue.

§ 18.1.4 Documents (a)

Recordkeeper Versus Rule 30(b)(6) Deposition

It is impossible to depose an accountant without the accountant’s documents. Where the accountant-deponent is a party witness, a document request will produce at least the first wave of documents, although, as discussed below, you may prefer a preliminary deposition. If the accountant is a nonparty witness, you will need to take his or her deposition to obtain the accountant’s documents. In either event, if you opt for a deposition, you have the choice of deposing the accountant’s keeper of the records or taking a deposition under Super. R. Civ. P. 30(b)(6), each with a document request attached (for parties) or a subpoena duces tecum. If you decide to depose a keeper of the records, the accountant (or accounting firm) will almost certainly produce an individual who knows very little, if anything, about the documents produced. The accountant may also respond by sending copies of the documents requested, saving you the time and expense of a deposition. However, the keeper approach has several disadvantages. Without a witness who is familiar with the documents, you will get no further than having the documents identified on the record as documents belonging to the accountant. A Rule 30(b)(6) deposition of the individual most knowledgeable about the documents requested (but not about the engagement—save that for later) can accomplish much more than a recordkeeper deposition, even though you will not, at the first stage, be asking many substantive questions. With a witness knowledgeable about the documents, you will save yourself—and possibly your own accounting expert—time, by obtaining as much information as possible about the documents in the initial deposition.

(b)

Content and Organization

Accountants’ work papers are normally kept in separate bound volumes organized by accounting subject matter, e.g., inventory, accounts receivable, accounts payable, long- and short-term debt, cash, trial balances, and costs of goods sold. The conclusions of the accountant (or accountants) and the final numbers generally 18–6

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.1

appear on top of the file. Behind these numbers are narratives and sets of detailed calculations or audit tests that support, “prove,” or provide “audit comfort” about the accountants’ conclusions. The various work papers are identified with a letter or number code that, once understood, will explain the organization of the work papers and the process the accountant followed in conducting the engagement.

(c)

Original Versus Copies

You should do your best to examine original documents, even if it means taking the Rule 30(b)(6) deposition at the accountant’s office. Copies of accountant records do not provide the same clarity of organization, and in many cases do not provide the same information, as the original documents themselves. It is much easier to follow the organization of work papers when you can examine whole spreadsheets, rather than spreadsheets segmented onto photocopied pages. Moreover, “tick marks,” or codes, are sometimes recorded with different colored pencils—a detail that is lost in the copies. If it is important enough, colored photocopies can duplicate this level of detail. However, if you have never seen the originals, you will not know whether you need colored copies or whether you can even learn enough about the documents from copies to prepare the deposition of the accountants themselves. It is important to review originals, even if much of the accountants’ work product is in electronic form, because even electronic work papers often use more than one color to differentiate between the material that exists in the worksheet template and information that is inserted for the particular audit.

(d)

Scope of Questioning

Rule 30(b)(6) Deposition The following are some topics you should ask about at a Rule 30(b)(6) document production deposition. • Ask the witness to identify indexes, explain the organization of the work papers and identify “tick marks,” symbols for documents prepared by the client, and to identify the initials of the individuals who may appear on the work papers. • For work papers stored in electronic form, ask the witness to explain the overall organization of the electronic data, how and when information is inputted and by whom, and whether there is underlying or related data that is not in electronic form.

18–7

§ 18.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• Ask the witness to explain the accounting or auditing hierarchy at the firm and any rotation of audit partners or change in auditing personnel during the relevant period. • Often, work papers are only dated with the year-end date of the audit. Ask the witness to identify the symbols that indicate when a document was prepared or reviewed.

Keeper and Rule 30(b)(6) Deposition The following are categories of documents you may want to request in advance of a keeper-of-the-records and Rule 30(b)(6) deposition: • documents relating to any practice or policy of the accountants with respect to the preparation or retention of work papers, working papers, audit papers, records, memoranda, analyses, calculations, spreadsheets, correspondence, or other documents; • all notes, memoranda, work papers or working papers (with index), bulk files, permanent files, schedules, spreadsheets, financial statements, business records, financial records, correspondence, review files, peer-review files, second-partner review files, and audit papers relating to, referring to, evidencing, or containing work performed by the accountants in connection with each audit, review, consulting, or other work for the company; • audit programs, plans, procedures, and related instructions or interpretations thereof, used in connection with the preparation of, review of, audit of, or consultation regarding any and all of the company’s financial statements; • audit manuals, practice or procedure manuals, policy statements, guidelines, checklists, administration manuals, training or educational materials, bulletins, magazines, newsletters, industry standards, industry guides, including without limitation, all generally accepted auditing standards (GAAS), generally accepted accounting principles (GAAP), American Institute of Certified Public Accountants (AICPA) standard of field work, statements on auditing standards (SAS), Financial Accounting Standards Board (FASB), Accounting Principles Board (APB) statements, rules of the Public Company Accounting Oversight Board (PCAOB), or other accounting or auditing standards that are used or relied on by the accountants. The Securities and Exchange Commission (SEC) has issued two Staff Accounting Bulletins that address two of the issues 18–8

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.1

that arise most frequently in cases involving accounting for publicly held companies—revenue recognition and restructuring charges associated with mergers and acquisitions and business “exit” activities. See “Revenue Recognition in Financial Statements,” S.E.C. Staff Accounting Bulletin 101 (Dec. 1, 1999); “Restructuring and Impairment Charges,” S.E.C. Staff Accounting Bulletin 100 (Nov. 24, 1999). Pursuant to the Sarbanes-Oxley Act, the SEC has also adopted regulations that require specific disclosure of off-balance-sheet transactions. See Securities Act Release No. 8182 (Jan. 28, 2003); • firm-specific policy manuals; some of the larger accounting firms recently developed their own set of accounting standards that impose policies and obligations beyond those set by the national accounting organizations. Counsel should be sure to separately request such firm-specific policy manuals in a Rule 30(b)(6) deposition notice or document demand; • correspondence, including engagement letters, between the accountants and the company; • communications between the accountants and the accountants’ national home office or headquarters that concern the company; • documents relating to all management, advisory, or other services rendered by the accountants to or on behalf of the company. The Sarbanes-Oxley Act prohibits the company’s auditors from providing most nonaudit services, so it is particularly important to find out if there are any other types of services provided; • management letters (and drafts) from the accountants to the company; • documents relating to all audit opinions and reports; • documents relating to meetings between the accountants with the board of directors of the company or any member of the company’s board of directors or any committee or subcommittee thereof; • documents relating to any communication with, or meetings between, the accountants and any internal auditing or financial staff of the company;

18–9

§ 18.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• estimates, budgets, or forecasts of company revenues, expenses, results of operations, etc., made by or for the company with the accountants’ participation or knowledge; • the accountants’ insurance policies; • documents relating to the compensation received by the accountants for services performed for the company; • calendars, monthly records, or other periodic notes maintained by the partners or employees of the accounting firm who participated in any of the engagements; • documents concerning the purchase or ownership of the client’s securities by the partners or employees of the accounting firm who participated in any company engagement; • documents relating to the accountants’ auditing practices or procedures, accounting principles, professional manuals, worksheets, policy statements, guidelines, standards, standardized checklists and other standardized printed materials, training or educational materials, management consulting materials, bulletins, magazines, newsletters, industry guides, professional standards and internal memoranda, or correspondence or other documents authored, used, or circulated by the accountants, concerning specific areas of inquiry. Because most accountant work papers are now created and maintained electronically, it is particularly important to obtain a copy of the accountant’s policies on creating and maintaining work papers in electronic form; and • all documents relating to marketing, practice developments, promotional, or informational materials given to actual or potential audit clients. In light of the prosecution of Arthur Andersen in the Enron case for the destruction of records, and the SEC rules promulgated under the Sarbanes-Oxley Act on the retention of records (see SEC Release No. 8151 (Nov. 21, 2002)), it is critical to ask for an accountant’s record-retention policy and, if applicable, to request information about any records that have been destroyed, including the nature of the records destroyed, where they were previously kept, when they were destroyed, and why they were destroyed. Similarly, in light of the SarbanesOxley requirements for the rotation of audit partners, it is important to ask who specifically worked on an audit engagement, as well as when this work occurred.

18–10

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.1

§ 18.1.5 Substantive Deposition of the Accountants (a)

Preparation with Your Own Expert

Unless you are an expert in the specific accounting field in question, you will need to have an accounting expert review the work papers and other documents as well as the information you elicited in the initial document-gathering deposition. Your expert will be particularly interested in reviewing the audit manuals and policy statements, guidelines, and auditing standards identified by the accountants as “used or relied upon” in performing their work. Your expert will help you both formulate a theory of the case and identify shortcomings in the accountants’ procedures and in their interpretation of the applicable standards. However, it is important for you to review the documents themselves. Margin notes, lists of “to dos,” narratives, etc. may be key in establishing liability— whether the accountants’ or the clients’—and you are at least as likely to understand the significance of such remarks as your own accounting experts. A close reading of all the accountants’ documents is as essential to your preparation as working with your expert.

(b)

Deciding Whom to Depose

Assuming you have identified the individuals who are responsible or who participated in the engagement at issue (and if you elected to gather documents by means of a keeper-of-the-records deposition or a Rule 34 request, you may need interrogatories to do so), the question remains whom to depose. A Rule 30(b)(6) deposition addressed to the accounting firm to produce the persons “most knowledgeable” about a particular accounting task may be the best way to proceed. However, you may be provided with the partner in charge of the engagement, who may not be familiar with the depth of detail you need to prove your case. For detail, you may want to designate specific people who you know actually performed or reviewed the work. However, you will also want to depose the individual who was the principal contact with the accountants’ client and, if applicable, with your client, because such communications may be essential to your case.

(c)

Scope of Deposition

To go back to the earlier examples, assume you have identified the individual principally responsible for auditing the counting and valuing of inventory. (It is probably a person at the senior or manager level in the firm.) You have reviewed the inventory work papers in detail, and you have reviewed all the documents relating to the audit, including the management letter, representation letter, and 18–11

§ 18.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

other correspondence, and have reviewed them with your expert. You understand the organization of the work papers and the procedures the accountants followed in conducting the audit. You have found statements in the accountants’ narratives to support your theory that obsolete inventory was probably counted by the client and that the accountants negligently failed to identify the problems in the audit. What do you do now?

Facts Essential to Case First, do not expect to put in your case through an accountant. What you can do is pin down the accountant on the subsidiary points that will enable your own expert to conclude that obsolete inventory was not identified in the audit and that the accountants were negligent. To do that, and to provide your expert with the foundation necessary to deliver an opinion at trial, you need to confirm on the record the facts that are essential to your case. In this example, this means uncovering the existence of unaudited “punch numbers,” or estimates, or representations of the client. Alternatively, it could entail confirming the existence of unaccounted-for obsolete inventory from past years, the absence of a reconciliation between prior years and this year, or the lack of proper communication with prior accountants and the like.

Standards Followed You will need to ask the witnesses to identify the accounting or auditing standards and procedures, both internal and external, that the firm relied on in rendering its opinion. You will need to establish the firm’s position as to whether, and how, those standards were met. For example, in March 2006, the AICPA’s Auditing Standards Board (ASB) issued eight Statements on Auditing Standards (SAS 104–111) relating to the assessment of risk in an audit or financial statements. These statements establish standards and provide guidance concerning the auditor’s assessment of the risks of material misstatement (whether caused by error or fraud) in a financial statement audit, and the design and performance of audit procedures whose nature, timing, and extent are responsive to the assessed risks. Additionally, the statements establish standards and provide guidance on planning and supervision, the nature of audit evidence, and evaluating whether the audit evidence obtained affords a reasonable basis for an opinion regarding the financial statements under audit. If fraud has been committed and the auditors of the financial statements did not detect the fraud, the attorney, in his or her deposition, might want to establish the following: 18–12

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.1

• whether the auditors exercised professional skepticism when considering the possibility that a material misstatement due to fraud could be present; • as part of planning the audit, whether there was a discussion among the audit team members to consider how and where the entity’s financial statements might be susceptible to material misstatement due to fraud and whether they reinforced the importance of adopting an appropriate mindset of professional skepticism; • whether the auditors gathered information necessary to identify the risk of material misstatement due to fraud by –

inquiring of management and others within the entity about the risks of fraud,

–

considering the results of analytical procedures performed in planning the audit,

–

considering fraud risk factors, and

–

considering certain other information;

• whether the auditor used the information gathered to identify risks that may result in material misstatement due to fraud; • whether the auditor evaluated the entity’s programs and controls that address the identified risks of material misstatement due to fraud, and whether the auditor assessed the risks taking into account this evaluation; and • whether the auditor responded to the results of the risk assessment.

Review of Management Letter and Other Work Papers You will need to go over the management letter with the accountant who drafted it, as well as the accountant who had management meetings with the client, to find out what may be implied but not explicitly stated. Probe in detail who was present, what was said, and when, to whom, and by whom, in order to establish • what the client knew, • what the accountants knew, and • when the client or the accountants knew it. 18–13

§ 18.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Similarly, probe the accountants’ review of the prior accountants’ work papers, and, in particular, any relevant management letters from prior accountants. These documents may provide important clues to continuing problems.

Accountants’ Knowledge of Client and Industry An accountant is responsible for understanding the client’s business and the economic and political climate in which it operates. Accordingly, you should probe what the accountants knew of the client’s industry, the economic climate, and the usage in the trade and history of the company. By asking such questions, you may learn valuable information about the client (apart from accounting information) that you otherwise would not have known. In addition to industry-specific practices, counsel should be sure to probe industry-specific accounting standards, such as the guidance that has been developed on capitalizing the development costs for computer software. See, e.g., “Computer Software: Guidance on Applying FASB 86” from the Financial Accounting Standards Board (FASB) series: Highlights of Financial Reporting Issues (Feb. 1986). Photocopied reprints are available from the FASB, 401 Merritt 7, P.O. Box 5116, Norwalk, CT 06856, (203) 847-0700.

Relevant Privileges Communications between an accountant and a current or former client are confidential communications, which accountants are prohibited from disclosing without consent. R.I. Gen. Laws § 5-3.1-23(a). In pertinent part, Section 5-3.123 of the Rhode Island General Laws provides that “[n]o licensee, including, but not limited to, clerks, paraprofessionals, and students under work-study programs . . . shall disclose any confidential information obtained in the course of a professional engagement except with the written consent of the client or former client.” R.I. Gen. Laws § 5-3.1-23. The confidential nature of the relationship between an accountant and his or her client, however, does not extend the common law attorney-client privilege to an accountant-client privilege. See Clifford McFarland Read & Lundy, Inc. v. Brier, 1998 WL 269223, at *10 (R.I. Super. Ct. May 13, 1998), rev’d on other grounds; see also United States v. Arthur Young & Co., 465 U.S. 805, 817–18 (1984); Couch v. United States, 409 U.S. 322, 335–36 (1973). Accountants have attempted to cloak portions of their work product under a privilege of “self-critical analysis.” While this privilege has received some mixed judicial recognition in Massachusetts (although not in the context of accountants’ work), the privilege has not received treatment by Rhode Island courts. See, e.g., Whittingham v. Amherst Coll., 164 F.R.D. 124, 129–30 (D. Mass. 1995); 18–14

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.1

O’Connor v. Chrysler Corp., 86 F.R.D. 211 (D. Mass. 1980). Moreover, at least two courts have specifically held that the privilege is not recognized in Massachusetts. Rhodes v. AIG Domestic Claims, Inc., No. 05-1360-BLS2, 2006 WL 307911, at *4 (Mass. Super. Ct. Jan. 27, 2006) (“Massachusetts does not recognize any internal investigative privilege apart from the statutory privilege granted to hospitals to conduct internal peer investigations”); MBTA v. Deloitte & Touche, 5 Mass. L. Rptr. 61 (Mass. Super. Ct. 1996) (privilege not yet recognized in Massachusetts). Although not afforded its own “privilege,” documents and work product prepared by an accountant may be protected from disclosure under the attorney-client privilege when an accountant performs work to assist a client’s attorney in providing legal advice to the client. See Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002); Fleet Nat’l Bank v. Tonneson & Co., 150 F.R.D. 10, 13–16 (D. Mass. 1994). The privilege, however, only extends to legal advice and does not shield from disclosure advice provided by the accountant. Cavallaro v. United States, 284 F.3d at 247. Moreover, following the First Circuit’s decision in United States v. Textron, C.A. No. 07-2631, 2009 WL 2476475 (1st Cir. Aug. 13, 2009), any work-product privilege likely only extends to accounting work provided to attorneys in “anticipation of litigation.”

§ 18.1.6 Conclusion In many respects, deposing an accountant does not differ from deposing any other witness. The vocabulary may be different, the documents may look different, and the level of detail required to prove your case may be different, but the guiding principle is the same: to build your case incrementally with the little facts on which your expert will be able to rely to prove your case.

§ 18.2

DEPOSING ECONOMISTS

§ 18.2.1 Introduction Deposing any expert can pose major challenges to an attorney; each field of expertise has its own complex sets of theories, methodologies, and language. This may be especially true in the case of economists, for a number of reasons. First and foremost, the economic aspects of a case can be critical to its outcome, often as the essence of the matter—the amount the plaintiff may ultimately recover. Second, the average layperson may feel sufficiently familiar with or even comfortable with some of the basic rudiments of economics from continual media coverage of subjects such as unemployment, inflation, and interest rates. Also, a well-educated attorney may have taken some economics courses in college, which might lull him or her into a false sense of security that an economist’s 18–15

§ 18.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

deposition will be a walk in the park. At the other extreme, if an attorney feels that economics is arcane and totally beyond his or her understanding, he or she may dismiss the deposition of an economist as being a useless, inscrutable exercise. These types of attorneys need to rethink their assumptions and attitudes about deposing an economist and prepare for the event with extreme care, perhaps more so than with any other type of expert. The attorney may wish to retain or consult with another forensic economist to assist him or her in the case, especially when preparing for the deposition. While few routine cases have “dueling economists,” i.e., a testifying expert on both sides, frequently, attorneys hire an economist as a consultant to review the opponent’s expert report and assist in the preparation of the cross-examination strategy, either at a deposition or at trial. The higher the economic damages at issue in the case, the more important it is for the attorney to have an economic expert at his or her side. In major damages cases, or in cases where the only issue is “the numbers,” it is highly recommended that the expert be called on not only as a consultant, but also as a testifying expert witness. This section is intended to address depositions of economists who have been retained by parties as expert witnesses, and does not attempt to address every situation in which an attorney may have the opportunity to depose an economist.

§ 18.2.2 Preparing for the Deposition There are three areas where an attorney needs to focus in his or her preparation: • the information (facts and assumptions) of the case, • the expert himself or herself, and • what the expert actually did to arrive at his or her opinion of the total economic damages. If counsel determines that the facts or assumptions used by the expert are incomplete or wrong, counsel has the choice to expose the errors during a deposition or to wait until trial. Of course, this judgment call may depend on how crucial the errors are to the expert’s bottom-line opinion of the total economic damages.

(a)

The Information

As when deposing any expert witness, counsel should know the facts of the case better than the economist. As a first step, counsel must determine what facts and data form the basis for the economist’s conclusions and opinions. Counsel also 18–16

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.2

must determine if there are any factual details about which the economist is not aware. Counsel must ask probing questions to ascertain whether any facts or data not relied on were omitted from the economist’s analysis because they are not necessary to the analysis or because the economist has been remiss in collecting all of the material information. If the latter is the case, as addressed below, counsel must be able to exploit this fact. Along with exploring what factual information the expert has used, counsel must discover what assumptions the expert made in preparing his or her analysis. For example, in the case of a permanently disabled worker, counsel must discover how many additional years it has been assumed that the claimant would have worked, what rate of wage or earnings growth was assumed, what choice was made for the discount rate, etc. Similarly, in a wrongful termination (or other type of employment discrimination case), counsel must find out what was assumed about the claimant’s future labor force participation, i.e., would he or she be employed in the future and in what occupation and at what earnings level? These and many other types of assumptions are inherent in any analysis of future economic loss. The degree of deviation from “reality”—that is, either side’s assumption of what actually may happen in the future—has a strong bearing on the appropriate level of damages. Questioning the expert at length about what facts and assumptions were used in the analysis will likely uncover fertile areas for cross-examination in order to expose weaknesses in the expert’s opinion. (Note: Many economists use prepared checklists or questionnaires to gather the personal information about the client that they will use in the analysis. Included are basic demographic data, earnings and educational history, fringe benefits, household services, and several other items. Obtaining a copy of this document is often useful in preparing for the deposition.) An example of this type of checklist is included as Exhibit 18A.

(b)

The Expert

Most forensic economists have significant training in economics, including advanced degrees, and will not likely be disqualified as an expert, see DiPetrillo v. Dow Chem. Co., 729 A.2d 677 (R.I. 1999), solely based on their qualifications. Nonetheless, it is important to review the expert’s curriculum vitae to ascertain if it is indeed accurate. The economics profession, like most of the social sciences, does not have a professional accrediting body or system, and therefore almost anyone can call himself or herself an economist. Thus, it is imperative that the attorney verify the training and experience of the expert. Positive indications might include membership in the National Association of Forensic Economics (NAFE), a membership organization of about 700 forensic economists that is recognized as the standard bearer in the field of forensic economics. See http://www.nafe.net. NAFE publishes a high-quality refereed journal, conducts several national professional meetings each year, and perhaps most importantly, requires its members

18–17

§ 18.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

to adhere to a high standard of professional ethics, encouraging its members to disclose to the retaining attorney that he or she follows these ethical principles. Some courts have taken a jaundiced view of economists who practice primarily in the area of forensic testimony, so counsel should explore the nature of the expert’s work in order to determine if he or she has ongoing experience and credentials outside the courtroom, or is simply “an expert for hire.” If the forensic economist has any publications in the field, counsel should obtain copies of those publications. Counsel also should attempt to obtain copies of the expert’s trial or deposition testimonies in recent, similar cases. Counsel may wish to engage the assistance of another economic expert to review and critique these publications and transcripts. Counsel should use interrogatories to determine the identity of those whom the party intends to call as an economic expert witness at trial. See Super. R. Civ. P. 26(b)(4). Counsel should seek a list of the expert’s prior trials and depositions, identify the side by which he or she was retained, and obtain a list of all cases in which the expert was retained by opposing counsel in the current case. However, the very fact that a forensic economist has testified for his or her current client on many occasions in the past should not in and of itself be looked on as evidence of bias or lack of neutrality or transparency. If a forensic economist has testified for both plaintiffs and defendants, it is crucial to determine whether he or she has used the same methodology, data sources, and economic assumptions on both sides. For example, if the economist uses a different discount rate in his or her projections depending on which side has retained him or her, this could be considered a major ethical breach (see discussion of NAFE, above, and its Statement of Ethical Principles, available at http://www.nafe.net/Pages/Ethics.aspx), and could discredit his or her expert opinion.

(c)

The Economist’s Expert Opinion

Prior to deposing the economist, the attorney should ensure that he or she has received a satisfactory answer to his or her expert interrogatories propounded pursuant to Super. R. Civ. P. 26(b)(4) and Rule 33, or alternatively, in cases where an expert disclosure and report deadline has been established, the economist’s expert report. The attorney may wish to have the report reviewed by another economist, or defer doing this until after the deposition. Also, if the expert has relied on a third person’s information or data as input to his or her analysis (e.g., a life-care planner in a medical malpractice case or a vocational expert in an injury case), he or she must be able to fully explain the information and how he or she used it. 18–18

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.2

The essence of the expert opinion is the “bottom line,” i.e., his or her opinion as to the total economic damages in the case, usually put forth as “the present value of Ms. ________’s total economic losses is $_______.” (He or she may present more than one opinion based on various alternative assumptions or scenarios, e.g., as in the case of a permanently disabled minor, the use of three alternative assumptions about the future level of educational attainment absent the injury.) This figure means that, at least in theory, the claimant is “made whole,” i.e., totally compensated for all his or her losses. In other words, if this amount were awarded today, it would be exactly the right amount to compensate for actual past losses from the date of the injury or event to the present, plus an amount sufficient to compensate for the present value of all future losses, if invested today using “the prudent man rule.” At the end of the period in question, usually through the expected value of the person’s life, all principal and all interest will be exhausted. (Note: Attorney fees are not taken into account in any way in the “bottom line.” This works as a severe penalty to most plaintiffs’ economic “wholeness.”) Beyond stating precisely what facts were used in the economist’s analysis, the opinion must include specific information about all of the economic variables and data sources that the economist assumed were the most appropriate to use in his or her analysis. These include, for example, wage rate growth, the interest rate used for discounting future values, the earnings base used for future projections, the number of years projected into the future used in the analysis, the amount of fringe benefits, the calculation of both state and federal tax rates, and the appropriate life and work life expectancies. There may be many other variables depending on the specifics of each case. Each of these factors or economic variables involves a decision that the expert must make given the circumstances of the case. While counsel must ascertain the data that was used in each case, it is a strategic decision for the attorney as to how far to go in pursuit of the economist’s rationale for the economic variables and data sources used. As when deposing any expert witness, counsel must decide whether to alert the expert and opposing counsel by inquiring about or challenging the details of the expert’s opinion and conclusions during the deposition or, instead, to defer until the time of trial and expose potential weaknesses in front of the jury or factfinder.

§ 18.2.3 Deposition Strategy As with any expert, the aim of the economist’s deposition is to fully discover all of the expert’s opinions and the bases of such opinions. The expert must be able adequately to explain his or her methodology, and how his or her experience and training have been applied reliably to the facts, economics data, and assumptions of the case in order to lead to his or her conclusions. An expert’s failure to provide an explanation of his or her methodology may lead to exclusion. Before the 18–19

§ 18.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

deposition, counsel should have reviewed all documents referenced by the expert, publications by the expert, and reports and transcripts of the expert’s testimony in similar cases. He or she may also wish to speak with other attorneys who deposed the expert in other similar cases. Counsel should then develop an outline for the deposition. The goal of a deposition is not usually a frontal assault on the economist expert’s opinion. An economic expert is not going to be swayed by deposition questioning, and to the extent that counsel has a cogent and valid argument to discredit an opinion or the bases for an opinion, such material may best be saved for trial. This is also true for any inaccuracies or inconsistencies found in the underlying data or assumptions. Depending on their materiality, minor inaccuracies may not constitute grounds for disqualification, but they certainly can undermine the credibility of the witness when they are brought out in cross-examination. Of course, counsel’s strategy for the deposition may be a function of his or her confidence in being able to settle the case before trial, with or without reference to the economist’s final numbers. An attorney may wish to propose alternative assumptions to the economist and ask him or her to calculate the new final figure for total economic damages based on these new assumptions. An example of this would be a change in the expected work life in a permanent disability case. The economic expert may have assumed that the plaintiff would have worked to age sixty-five (despite the national work life data from the U.S. Department of Labor showing that the expected work life for a forty-five-year-old is 15.7 years). He or she could be asked to recalculate the work life to age 60.7, with the result being a diminished damages figure. Alternatively, the attorney might defer this inquiry for trial, to challenge the credibility and neutrality of the witness, especially if several upwardly biasing assumptions are found to have been used—if you challenge an expert at deposition, you may face a wiser and far more prepared expert at trial. At the close of the deposition, counsel should ask the expert whether his or her testimony constitutes the expert’s final opinion and his or her planned trial testimony. If a long time passes between the deposition and the trial, most economists will want to update their opinions. Many experts use language in their reports indicating that the opinion is subject to being amended, pending new information or changing economic conditions.” If an updated opinion is submitted, counsel may consider reopening the deposition to ask questions regarding the revised opinion. Note that “changing economic conditions” may result in the numbers going up or down. If a new opinion is not made available, but the expert testifies to different numbers at trial from those he or she presented at the deposition, counsel should inquire at length as to why the update was needed, exactly what changed, and of course, how it affected the “bottom line.”

18–20

DEPOSING ACCOUNTANTS AND ECONOMISTS

§ 18.2

§ 18.2.4 Conclusion Deposing an economics expert is fraught with the same pitfalls for the attorney as deposing other experts. It relies on theory, concepts, and a vocabulary usually at least somewhat unfamiliar to the attorney, regardless of his or her education. Preparation and careful analysis of the expert’s argument, supplemented by the guidance of your own expert (whether as an assisting consultant or as a testifying witness), will result in a successful deposition, assisting the attorney in building his or her case.

18–21

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

18–22

DEPOSING ACCOUNTANTS AND ECONOMISTS

EXHIBIT 18A—Checklist of Information Needed for Economic Appraisal PERSONAL INJURY Prepared For Manuel Smith Forensic Economist Name of Case ____________________________________________________ Trial Date and Court _______________________________________________ Plaintiff’s Attorney ________________________________________________ Defendant’s Attorney _______________________________________________ Discovery Deadline ________________________________________________ Date Report Needed _______________________________________________ Name(s) of Other Expert(s) to be Used _________________________________ Defendant’s Economist, if Known _____________________________________ I. Personal Information About the Injured Plaintiff 1. Full name, date of birth, sex and race, address and telephone numbers. 2. Date of accident or incident. 3. Educational attainment, degrees received, institution, and dates. 4. State of general health prior to the accident (incident). Prior to the injury, did plaintiff have an average life expectancy? After the accident (incident), has life expectancy changed? If pre- or post-accident life expectancy is not average, please explain. 5. What is the plaintiff’s height and weight? If these have changed since accident (incident), give details.

18–23

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

6. Provide medical reports and/or depositions providing the opinion of physicians and/or other medical experts about the plaintiff’s injuries, prognosis and health. II. Family Information 1. Name, date of birth, sex and race of spouse; date of marriage. 2. Education of spouse (See Part I, #3, above). 3. Employment of spouse (See Part III, below). 4. State of general health of the spouse. 5. Names and dates of birth of any children, and of any other dependents. III. Employment Information About the Plaintiff 1. Primary occupation and years employed, as well as the prospective occupation (if different). 2. How much time was lost from work following the accident (incident)? What was the wage or salary at the time of the injury? 3. For five years immediately preceding the accident (incident), provide information on the earnings of the plaintiff. Provide copies of tax returns and W-2 forms, or other employer payroll records. Provide a copy of “Your Social Security Statement” for the plaintiff from the Social Security Administration, if available. (May be obtained from the web site www.ssa.gov/mystatement or by calling 1-800-772-1213.) 4. Provide information about all fringe benefits provided to the plaintiff. Indicate the amount of each benefit paid by the employer and the amount paid by the plaintiff. Provide copies of Earnings and Leave Statements. 5. Indicate reasonably probable date of retirement, if known. If available, provide a description of the retirement program, benefits formula, plan brochure, etc. Has retirement date changed as a result of the injury? If so, please explain. 6. Unless plaintiff is totally and permanently disabled, provide information about the plaintiff’s future employability: i.e., type of jobs to which the plaintiff is now restricted, rate of pay for such jobs, whether the plaintiff is able to work full time, and impact on worklife expectancy. Provide any information or reports received from vocational expert. 18–24

DEPOSING ACCOUNTANTS AND ECONOMISTS

IV. Household Services Performed If Plaintiff is currently unable to perform any household services that he/she was able to perform before the accident (incident), please describe in detail, with average hours per week. V. Future Medical Costs and Costs of Care 1. If a computation of cost of future medical care is needed, provide as much information as is known about projected care and services. Provide any information or reports received from medical experts. 2. For a plaintiff who will need substantial long-term assistance in performing the ordinary activities of daily living and medical care, it is recommended that a life-care plan be obtained from a life-care planning professional. VI. Pertinent Documents Please supply copies of any documents pertinent to damages, such as the complaint, depositions, answers to interrogatories, and reports of other experts. VII. Information About Person Completing This Questionnaire 1. Name _________________________________________________________ 2. Phone Numbers _________________________________________________ 3. Date Questionnaire Completed _____________________________________

18–25

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

18–26

CHAPTER 19

Physical and Mental Examinations Sean K. Brousseau § 19.1

Introduction ........................................................................ 19–1

§ 19.2

Requirements for Obtaining an Order............................. 19–3 § 19.2.1

Medical Condition “In Controversy” .................. 19–4

§ 19.2.2

“Garden Variety” Conditions............................... 19–5

§ 19.2.3

Specific and/or Severe Conditions ...................... 19–6

§ 19.2.4

Turner v. Imperial Stores—The Modern Test ..... 19–7

§ 19.2.5

Good Cause ......................................................... 19–8

§ 19.2.6

Additional Requirements of Rule 35..................19–11

§ 19.2.7

Place, Time, and Costs .......................................19–11

§ 19.2.8

Type and Extent of Examination ....................... 19–13

§ 19.2.9

(a)

General Considerations ............................ 19–13

(b)

Drugs and Anesthetics.............................. 19–14

(c)

X-rays....................................................... 19–15

(d)

Blood and Other Chemical Analyses ....... 19–15

(e)

Vocational Experts ................................... 19–15

Person Conducting the Examination ................. 19–16

§ 19.2.10 Persons Present at Examination ........................ 19–17 § 19.2.11 Examiner’s Report ............................................ 19–18 § 19.3

Recourse............................................................................ 19–19

19–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

19–ii

CHAPTER 19

Physical and Mental Examinations Sean K. Brousseau

Scope Note This chapter deals with the handling of requests for physical and mental examinations. It discusses each requirement for obtaining an order under the Rhode Island Superior Court Rules of Civil Procedure, including the “in controversy” and “good cause” analyses, notice requirements, qualified examiners, and what constitutes an appropriate examination.

§ 19.1

INTRODUCTION

In many civil actions, the health status of a party (or nonparty) may be at issue due to the ongoing nature of a physical or mental injury. A party may seek damages for his or her injury or such injury could be germane to a defense or evidentiary limitation. In order to allow the parties a fair opportunity to explore such issues, the rules of discovery permit the physical and mental examination of individuals, subject to certain limitations. Medical examinations are useful both as a discovery tool and competent evidence at trial. The result of a medical examination can substantiate or call into doubt not only the physical or mental condition of a party, but also the methods, conclusions, or competency of a prior examiner. Practice Note In practice, physical and mental examinations by an opposing party’s expert are almost uniformly agreed to by the parties absent motion practice, with little or no disagreement concerning the scope of the examination. Even so, it may by useful to reduce any such agreement to writing—even in its most basic sense—in order to avoid confusion or controversy in the future. In fact, Super. R. Civ. P. 35(b) makes clear that its terms apply to any such examination whether ordered or agreed to by the parties.

19–1

§ 19.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The primary source of authority for a physical or mental examination is set out in Super. R. Civ. P. 35: (a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. (b) Report of Examiner. (1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requesting party a copy of a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that the party is unable to obtain it. The court on motion and notice may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make such a report the court may exclude the examiner’s testimony if offered at the trial. (2) By requesting and obtaining a report of the examination so offered or by taking the deposition of the examiner, the party examined waives any privilege 19–2

PHYSICAL AND MENTAL EXAMINATIONS

§ 19.1

the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition. (3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule. The Rhode Island version of the Rule is, in all practical manner, identical to Fed. R. Civ. P. 35. Because reported cases interpreting Rule 35 are very limited, it may be helpful to refer to federal case law and authority from other states, especially with regard to discrete issues. Practitioners should notice that subsection (a) of the Rule sets forth the elements that must be established before the court will issue an order. The remainder of subsection (a) concerns the requirements for proper notice to the individual to be examined as well as the parties. Whether you are considering the form of a motion to request an examination or attempting to determine whether such a motion is proper, all the elements in subsection (a) of the Rule should be methodically explored. Subsection (b) is divided into three parts. Paragraph (1) provides for the distribution of any report resulting from such examination as well as any report dealing with the same condition in the possession of a party or nonparty. Paragraph (2) serves to waive any privilege the examined individual may have to the testimony of any other individual who has examined or will examine the individual for the same mental or physical condition. Paragraph (3) makes subsection (b) applicable to examinations performed pursuant to an agreement among the parties absent express language to the contrary. The individual requirements for obtaining an order pursuant to Rule 35 are discussed below.

§ 19.2

REQUIREMENTS FOR OBTAINING AN ORDER

The Rhode Island Rule is closely patterned on federal Rule 35. The similarities are particularly relevant with regard to two conditions precedent that must be 19–3

§ 19.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

met before a justice in either jurisdiction may grant a motion calling for submission by an individual to a physical or mental examination. Specifically, there must be an affirmative showing by the movant that the physical or mental condition of the individual is a controversial issue in the case and that good cause exists for granting the motion. Raymond v. Raymond, 252 A.2d 345 (R.I. 1969). The two prerequisites “are not met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.” Raymond v. Raymond, 252 A.2d at 348 (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)). The burden of proving that the plaintiff’s mental state is in controversy and that good cause exists for ordering the examination lies squarely with the Rule 35 movant. Schlagenhauf v. Holder, 379 U.S. at 118–19.

§ 19.2.1 Medical Condition “In Controversy” The threshold showing to obtaining an order for examination is to establish that the mental or physical condition of the individual to be examined is “in controversy.” Super. R. Civ. P. 35(a). There are two primary ways that the mental or physical condition of a party may be placed in controversy: • the party may place his or her mental condition in controversy through representations made during the course of litigation (either through pleadings or testimonial evidence), see Bowen v. Parking Auth. of City of Camden, 214 F.R.D. 188 (D.N.J. 2003); or • another party to the suit may do so by way of defense to the underlying action, Womack v. Stevens Transp., Inc., 205 F.R.D. 445 (E.D. Pa. 2001). The “in controversy” element is met if it can be shown that “a determination of the merits of an issue . . . may turn on, or be directly affected, by the physical or mental condition of the party sought to be examined.” Raymond v. Raymond, 252 A.2d 345, 349 (R.I. 1969). The court in Raymond considered an appeal from a Superior Court order denying a defendant’s motion for physical and mental examination of the plaintiff pursuant to Rule 35(a) and R.I. Gen. Laws § 9-17-19 (subsequently repealed). The defendants were co-executors of the will of their father, who was also the father of the plaintiff, an adult epileptic who, acting sui juris, had appealed to the Washington County Superior Court a decree of the North Kingstown Probate 19–4

PHYSICAL AND MENTAL EXAMINATIONS

§ 19.2

Court allowing an account rendered by the defendants as executors of the estate. While the plaintiff’s appeal was pending, the defendants moved, pursuant to Rule 35, for an order that the plaintiff submit to a physical and mental examination in order to determine his “correct legal status . . . with respect to his ability to bring the pending action without a guardian.” Raymond v. Raymond, 252 A.2d at 347. The court held that the evidence of the plaintiff’s psychiatric condition offered by the defendants related to the defendants’ petition to have the plaintiff placed under guardianship rather than the rendering of an account. While it may be true that the plaintiff’s physical and mental condition may relate to the passing of a probate decree, in appealing from the probate court’s order, the plaintiff was in fact represented by counsel. If the defendants questioned the plaintiff’s ability to act sui juris, the proper method is via a separate proceeding for that purpose brought in the probate court. Thus the defendants’ motion was not material to “the case within which the motion was made.” Raymond v. Raymond, 252 A.2d at 350.

§ 19.2.2 “Garden Variety” Conditions Courts have grown increasingly reluctant to grant a Rule 35 psychiatric exam of an individual claiming emotional distress unless the claims are so serious and involved that the average person might not be able to properly evaluate the nature, extent, and cause of the injuries, or unless the plaintiff identifies an expert witness to testify on his or her behalf regarding that person’s psychological condition. See, e.g., Greenhorn v. Marriot Int’l, Inc., No. 02-2081-JWL, 2003 WL 1697765, at *2 (D. Kan. Mar. 27, 2003). Thus, in Bridges v. Eastman Kodak Co., the plaintiff alleged that sexual harassment at her place of work resulted in her constructive discharge as well as emotional suffering and mental anguish. Bridges v. Eastman Kodak Co., 850 F. Supp. 216, 222 (S.D.N.Y 1994). The District Court would not order a mental status examination, but permitted “limited” discovery into the nexus between the alleged harassment and plaintiff’s emotional harm. In Cody v. Marriott Corp., 103 F.R.D. 421, 422 (D. Mass. 1984), the “in controversy” element was not met because the plaintiff did not place her mental condition in controversy merely by asserting a “garden variety” claim of damages for physical and emotional distress. However, the court went on to observe that a mental examination might be justified if the plaintiff alleged specific psychological injury. The plaintiff in Bowen v. Parking Authority of the City of Camden, similarly filed suit against his employer, the Parking Authority, when he was allegedly 19–5

§ 19.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

harassed and threatened and ultimately terminated, improperly, causing him “stress and emotional problems.” Bowen v. Parking Auth. of City of Camden, Civ. No. 00-5765(JBS), 214 F.R.D. 188, 189 (D.N.J. Apr. 4, 2003). The plaintiff described his allegations as “generalized claims for damages.” Bowen v. Parking Auth. of City of Camden, 214 F.R.D. at 190. The defendant requested an order for psychiatric examination of the plaintiff pursuant to Rule 35. The court concluded that “for a plaintiff’s mental status to be ‘in controversy’ requires more than ‘garden variety’ emotional distress allegations.” Bowen v. Parking Auth. of City of Camden, 214 F.R.D. at 193.

§ 19.2.3 Specific and/or Severe Conditions On the other hand, when a plaintiff refers to specific or severe mental injuries caused by a party’s conduct, it is generally appropriate for the court to order an examination. There existed a sufficient degree of severity in a party’s condition to order a medical evaluation pursuant to Rule 35 in the following cases. In Bethel v. Dixie Homecrafters, Inc., the court granted the defendant’s motion for examination by a licensed psychiatrist who would be assisted by a licensed psychologist when the plaintiff had alleged gender discrimination and infliction of emotional distress resulting in “extreme and severe emotional distress,” for which she sought compensatory damages. Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. 320, 321 (N.D. Ga. 2000). The court explained: given the nature of Plaintiff’s claims, the fact that she has squarely placed her mental condition in controversy, and because of the existence of treating health care professionals who may testify on Plaintiff’s behalf and the existence of other life events that may be contributing factors to Plaintiff’s emotional distress, the court finds that Defendants have affirmatively established good cause for the mental examination. Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. at 323. Anson v. Fickel, 110 F.R.D 184 (N.D. Ind. 1986) involved a plaintiff seeking compensation for injuries received in a traffic accident, including emotional distress. The court granted the defendant’s motion for psychiatric examination because the plaintiff’s psychiatric treatment had resulted in the plaintiff being confined to a psychiatric ward. Anson v. Fickel, 110 F.R.D. at 186. The court stated that “it must be assumed that the plaintiff was experiencing problems which were more severe than the emotional distress which frequently accompanies personal injuries.” Anson v. Fickel, 110 F.R.D. at 186. 19–6

PHYSICAL AND MENTAL EXAMINATIONS

§ 19.2

In Womack v. Stevens Transport, Inc., 205 F.R.D. 445 (E.D. Pa. 2001), the plaintiff contended that he sustained physical injuries as a result of an automobile accident that prevented him from working. During discovery, the defendant obtained a psychiatrist’s evaluation indicating a prior history of depression associated with vegetative symptoms. Womack v. Stevens Transport, Inc., 205 F.R.D. at 446. The court permitted an examination because the plaintiff’s preexisting psychological problems, rather than the physical injuries alleged in his complaint, may well have been the cause of his inability to work. Womack v. Stevens Transport, Inc., 205 F.R.D. at 446. Nuskey v. Lambright involved a defendant who filed a motion for mental examination asserting that the plaintiff “put her mental and physical condition in controversy” by virtue of her claim for substantial compensatory damages for humiliation, pain, embarrassment, and depression requiring therapy sessions in the past and prospectively for two additional years. Nuskey v. Lambright, 251 F.R.D. 3, 6 (D.D.C. 2008). The plaintiff argued against the examination because she did not intend to offer an expert for pecuniary damages and she was claiming no more than “garden variety” compensatory damages. The court held that “an employee who seeks compensatory damages for emotional pain . . . has placed the existence and extent of [his or her] alleged mental injury in controversy.” Nuskey v. Lambright, 251 F.R.D. at 7. Thus, even temporary mental injury and claims for therapy costs may satisfy the “in controversy” element. Nuskey v. Lambright, 251 F.R.D. at 7. Finally, in Gepner v. Fujicolor Processing Inc., 637 N.W.2d 681, 690 (N.D. 2001), the North Dakota Supreme Court held that an opposing party could put a party’s condition in controversy by and through independent evidence. The defendant presented independent evidence that the plaintiff was being treated for depression, had demonstrated very unusual behaviors on a work tolerance assessment, and that such evidence suggested an underlying psychological basis for the plaintiff’s pain or exaggeration thereof. Gepner v. Fujicolor Processing Inc., 637 N.W.2d at 690.

§ 19.2.4 Turner v. Imperial Stores—The Modern Test Increasingly, the various jurisdictions have applied a five-factor test to determine whether a party may be ordered to undergo a mental examination pursuant to Rule 35. The test, first set forth in Turner v. Imperial Stores, Inc., 161 F.R.D. 89, 92 (S.D. Cal. 1994), involved a terminated employee who claimed damages for humiliation, mental anguish, and emotional distress as a consequence of racial discrimination and sexual harassment. As the basis for its motion for examination, the defendant cited the plaintiff’s descriptions of how her anguish and emotional distress manifested. Turner v. Imperial Stores, Inc., 161 F.R.D. at 97. In 19–7

§ 19.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

rejecting a uniform rule whereby a claim for emotional distress, without more, is sufficient to compel a mental evaluation, the court stated that a mental examination should not be ordered unless • there is a cause of action for intentional or negligent infliction of emotional distress, • there is an allegation of a specific mental or psychiatric injury or disorder, • there is a claim of unusually severe emotional distress, • the plaintiff offers expert testimony to support a claim of emotional distress, and/or • the plaintiff concedes that his or her mental condition is in controversy within the meaning of Rule 35. Turner v. Imperial Stores, Inc., 161 F.R.D. at 95. The Turner factors are rapidly becoming the accepted methodological tool to determine the propriety of ordering a psychological examination. While the factors specifically apply to allegations of mental injury, the reasoning behind them seems equally applicable to physical injury; therefore, it may be practical to adapt the factors to the circumstances involving an allegation of physical injury. Practice Note The court’s decision whether to grant a motion for physical or mental examination is guided, first and foremost, by the record. Particular attention must be paid to understanding one’s claim for damages and pleading such claims with an appropriate level of detail to distinguish specific conditions with “garden variety” injuries that a layman could be expected to understand and associate with the alleged conduct—absent expert testimony. From a defendant’s perspective, it may prove fruitful to craft interrogatories or questions at deposition that seek specific information concerning the extent of the alleged injuries in order to determine the necessity and extent of any examination that may arise.

§ 19.2.5 Good Cause Recent developments in various jurisdictions have blurred the distinction between the “in controversy” determination and whether “good cause” has been shown, with some courts interpreting Schlagenhauf as merging the two considerations. 19–8

PHYSICAL AND MENTAL EXAMINATIONS

§ 19.2

Admittedly, it is difficult to identify a case in which the court determined the physical or mental condition to be in controversy but declined to grant the motion for lack of good cause. But see LeFave v. Symbios, Inc., No. 99-Z-1217, 2000 WL 1644154 (D. Colo. Apr. 14, 2000) (where the court concluded that even if defendant succeeded in showing that the plaintiff’s mental condition was “in controversy,” defendant still could not meet the good cause requirement under Rule 35). The “good cause” requirement is more specific than the “in controversy” requirement and represents a further limitation on the availability of examinations. The Schlagenhauf court characterized the requirement as follows: The specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26(b). Thus, buy adding the words “ . . . good cause . . . ,” the Rules indicate that there must be greater showing of need under [Rule 35] than under the other discovery rules. Schlagenhauf v. Holder, 379 U.S. 104, 117–18 (1964) (emphasis added) (citation omitted). Thus, the “good cause” requirement turns on the relevance and need for the physical or mental medical examination. Womack v. Stevens Transp., Inc., 205 F.R.D. 445, 447 (E.D. Pa. 2001). Good cause requires a showing that the examination could adduce specific facts relevant to the cause of action and is necessary to the movant’s case. Womack v. Stevens Transp., Inc., 205 F.R.D. at 447. The continuing or evolving nature of a condition could provide good cause for an expert examination. Also relevant to the court’s determination is “the ability of the movant to obtain the desired information by other means.” Schalgenhauf v. Holder, 379 U.S. at 118. Several courts have refused to order physical or mental examinations where the movant could obtain the desired information from other sources. See, e.g., Pearson v. Norfolk-Southern Ry. Co., 178 F.R.D. 580, 582 (M.D. Ala. 1998) (denying an examination where the movant could obtain copies of relevant records); Marroni v. Matey, 82 F.R.D. 371, 372 (E.D. Pa. 1979) (movant did not establish that the information was unavailable from less intrusive methods); Hughes v. Groves, 47 F.R.D. 52, 57 (W.D. Mo. 1969) (discovery of medical reports may deprive the movant of “good cause” for an examination); Martin v. Tindell, 98 So. 2d 473, 475 (Fla. 1957), cert. denied, 355 U.S. 959 (1958) (stating that although the denial of a Rule 35 motion might be an abuse of discretion where the 19–9

§ 19.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

defendant does not have access to the reports of either the hospital or the physician, there was no abuse of discretion in denying the motion where the defendant had such access). But contrast Eckman v. University of Rhode Island, in which the court ordered an examination where the movant established that the severity of the injury would play a central role and that the examination would result neither in duplication of prior examinations nor in cumulative or invasive procedures. Eckman v. Univ. of R.I., 160 F.R.D. 431, 434 (D.R.I. 1995); see also Lahr v. Fullbright & Jaworski, LLP, 164 F.R.D. 196, 200–01 (N.D. Tex. 1995) (ordering an examination where the defendant demonstrated that the existing medical evidence was inadequate to evaluate the employee’s mental condition, and the defendant’s psychologist averred that a mental examination was necessary to evaluate the employee’s emotional state); Anson v. Fickel, 110 F.R.D. 184, 186 (N.D. Ind. 1986) (finding good cause for an examination even though the movant had access to the plaintiff’s medical records). Courts recognize that expert medical examinations necessarily impinge upon the privacy and personality of the individual examined and are understandably cautious in ordering them. R.R.K. v. S.G.P., 507 N.E.2d 736, 740 (Mass. 1987) (Liacos, J., concurring). Thus, Rule 35 gives the court the power to compel mental and physical examinations “only upon a discriminating application of the limitations of the Rule.” Sacramona v. Bridgestone/Firestone, Inc., 152 F.R.D. 428, 431 (D. Mass. 1993). As with the in controversy determination, the particular facts offered in each case dictate not only whether an IME is appropriate, but also bear upon the type and scope of the examinations ordered. “[W]hat may be good cause for one type of examination may not be so for another.” Schalgenhauf v. Holder, 379 U.S. at 118. In Sacramona v. Bridgestone/Firestone, Inc., the plaintiff was injured when he attempted to mount and inflate a Bridgestone tire on a metal wheel rim. The court determined that “good cause” was too attenuated to compel an HIV blood test of the plaintiff because the defendants’ only reason to obtain the blood test was to “create HIV information so that the defendants may then discover it.” Sacramona v. Bridgestone/Firestone, Inc., 152 F.R.D. at 431–32. Contrast Sacramona with another Massachusetts case, Doe v. Senechal, 725 N.E.2d 225 (Mass.), cert. denied, 531 U.S. 825 (2000). In Senechal there existed “good cause” to compel a paternity test because there would be no objective basis upon which to evaluate paternity except through administration of a blood test, and there was evidence in the record that the defendant had sexual intercourse with the plaintiff during the relevant time frame. Doe v. Senechal, 725 N.E.2d at 230.

19–10

PHYSICAL AND MENTAL EXAMINATIONS

§ 19.2

The “good cause” requirement is generally met when a party’s physical or mental status cannot be ascertained without an expert’s medical opinion based on an evaluation of the party, not merely materials already in existence. Practice Note While the good cause requirement heightens the burden on the moving party beyond the basic requirements of Rule 26, expert medical examinations remain a discovery tool. The court will exercise its discretion to determine whether the examination is likely to lead to the discovery of admissible evidence. An evidentiary hearing is not required, and the court’s determination will only be reversed for an abuse of discretion. The movant is best served by emphasizing the need for the examination in order to prepare for trial, the insufficiency of information from other sources, and the potential prejudice that would befall the movant if the examination is not permitted.

§ 19.2.6 Additional Requirements of Rule 35 In addition to setting forth facts sufficient to satisfy the “in controversy” and “good cause” requirements of Rule 35(a), a motion for physical and/or mental examination must specify the time, place, manner, conditions, and scope of the examination, as well the person or persons who will conduct the examination. Doe v. Provident Life & Accident Ins. Co., 247 F.R.D. 218, 221 (D.D.C. 2008); Cabana v. Forcier, 200 F.R.D. 9 (D. Mass. 2001) (movant complied with Rule 35 by providing the time and place for the exam as well as the name of the examiner and a general idea of the exam’s intended scope).

§ 19.2.7 Place, Time, and Costs Generally, the proper location for the physical or mental examination of an individual is either a place that is practical to all parties or one that is convenient for the person being examined. 23 Am. Jur. 2d Depositions and Discovery § 304 (1983). In some instances, however, the health or circumstances of the individual to be examined justifies special treatment. For instance, a physical or psychological disability may make an examination in the individual’s residence most practical. Typically, the examination will be conducted in a locale proximate to the court in which it is filed. Many courts hold that plaintiffs in personal injury actions are subject to physical examinations pursuant to Fed. R. Civ. P. 35 in the district in which the trial will be held. See, e.g., Costanza v. Monty, 50 F.R.D. 75, 76 (E.D. Wisc. 1970); Baird v. Quality Foods, Inc., 47 F.R.D. 212, 213 (E.D. La. 19–11

§ 19.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

1969); Warren v. Weber & Heidenthaler, Inc., 134 F. Supp. 524, 524–25 (D. Mass. 1955); Pierce v. Brovig, 16 F.R.D. 569 (S.D.N.Y. 1954). In most of the above cases, the plaintiffs chose to bring suit in that district and the courts reasoned that they should not be heard to complain about having to submit to an examination in the district in which they chose. A critical consideration for the court is whether the district in which the case is filed has adequate health-care professionals to perform the examination. Thus, in Steele v. True Temper Corp., the court held that if competent physicians exist within the court’s jurisdiction, one of those physicians should be selected to conduct the examination. Steele v. True Temper Corp., 174 N.E.2d 298, 301 (Ohio 1961); see also Blount v. Wake Elec. Membership Corp., 162 F.R.D. 102, 107 (E.D.N.C. 1993) (absent defendant’s argument that there was no qualified neurologist in close proximity to plaintiff’s residence or judicial district, defendant was required to choose a neurologist from a forum that plaintiff had chosen). The converse would presumably be true as well, such that it would be reasonable to require an examinee to travel outside the court’s jurisdiction to obtain a competent examination. Still, a party will not be compelled to travel to or from the forum for an examination if that party can show that such travel would pose a risk to his or her health. In Steele, the court considered it an abuse of discretion to require a party to travel a distance if harm to the party could result from such a trip. Steele v. True Temper Corp., 174 N.E.2d at 301. The movant is responsible for paying the cost of conducting the physical or mental examination. It is customary, however, that the party whose examination is ordered bear his or her own expenses associated with travel to and from the examination and lost wages, and he or she is not entitled to compensation from the movant. McCloskey v. United Parcel Serv. Gen. Svcs. Co., 171 F.R.D. 268 (D. Or. 1997). But when travel from one’s residence is unduly burdensome or otherwise unavoidable, courts may grant relief to the individual by requiring the defendant to advance to a plaintiff funds sufficient to cover his or her reasonable travel and lodging expenses. McCloskey v. United Parcel Serv. Gen. Svcs. Co., 171 F.R.D. at 269–70; Eckmyre v. Lambert, No. Civ. A. 87-2222-O, 1988 WL 573858, at *1 (D. Kan. Sept. 6, 1988); Warren v. Weber & Heidenthaler, Inc., 134 F. Supp. at 525 n.1. The amount of such an advance may be deducted from the amount of plaintiff’s recovery, if any. See Eckmyre v. Lambert, No. Civ. A. 87-2222-O, 1988 WL 573858, at *1; Warren v. Weber & Heidenthaler, Inc., 134 F. Supp. at 525 n.1.

19–12

PHYSICAL AND MENTAL EXAMINATIONS

§ 19.2

In Warren, a Maine resident who brought suit in Massachusetts was required to submit to a physical examination in the forum state because it would have caused hardship for the defendant to retain a witness from outside the forum state. In addition, because the plaintiff chose the forum, it was his responsibility to pay the travel expenses. Yet when the plaintiff provided evidence that he was unable to pay the travel expenses, the court ordered the defendant to advance the expenses, and then deduct that amount from any recovery the plaintiff attained.

§ 19.2.8 Type and Extent of Examination (a)

General Considerations

A critical aspect of any request for a Rule 35 examination is to set out the “manner, conditions and scope of the examination.” In order to obtain a court order for an examination, the nature of the examination must correlate with the medical issue in controversy. The court may limit or deny an examination if the request is vague or unnecessarily broad. Practice Note Medical examinations are often conducted by agreement of the parties. This helps to speed up the litigation and avoid unnecessary friction. In order to avoid any difficulties at the examination itself, it is helpful to set out the scope of the examination clearly in writing, along with any special conditions, such as the presence of an observer or assistant for the examinee. This agreement should be copied for the examiner so that there is no confusion at the time of the examination.

At a minimum, the movant must demonstrate the necessity and relevance of information that the procedure or examination will yield, and ensure the safety of its performance. See Pena v. Troup, 163 F.R.D. 352 (D. Colo. 1995). The court must then “balance . . . [the] party’s safety and freedom from pain against the need for the facts in the interest of truth and justice.” Charles Alan Wright, Arthur L. Miller & Richard L. Marcus, 8A Federal Practice and Procedure § 2235, at 494 (West 2000). Tests and examinations commonly permitted by courts include blood tests, x-rays, electrocardiograms, fingerprint analysis, and vocational exams. Particular scrutiny is applied to examinations that are invasive, dangerous, painful, or repetitious. Consistent with federal authority, painful or intrusive procedures are allowed only upon a showing of compelling need. See Klein v. Yellow Cab Co., 7 F.R.D. 169 (D. Ohio 1944) (the court ordered a painful cystoscopy because the defendant had a right to understand the extent of the plaintiff’s injury); 19–13

§ 19.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Cardinal v. Univ. of Rochester, 69 N.Y.S.2d 352 (App. Div. 1947) (the court ordered a bone marrow biopsy after defendant explained the pain, harm, and effect upon persons so examined); cf. Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D. Pa. 1990) (the court declined to order a spinal tap and an MRI requiring heavy sedation absent a “clear and convincing showing of a compelling need”). In order to balance the respective rights of the parties, courts have adopted a burden-shifting approach set forth in Lefkowitz v. Nassau County Medical Center, 462 N.Y.S.2d 903 (App. Div. 1983). Under the burden-shifting approach, the party opposing a Rule 35 examination may seek to forego the examination if it can show that the examination is prima facie potentially dangerous. Lefkowitz v. Nassau County Med. Ctr., 462 N.Y.S.2d at 906. If the opposing party meets this burden, the burden then shifts back to the movant to demonstrate that the examination is both necessary and safe. Lefkowitz v. Nassau County Med. Ctr., 462 N.Y.S.2d at 906; Pena v. Troup, 163 F.R.D. at 353–54. The question the court is concerned with is whether the requested examination creates an unacceptable risk to the subject’s well-being. See Sarka v. Rush-Presbyterian-St. Luke’s Med. Ctr., 566 N.E.2d 301 (Ill. App. Ct. 1990) (compelling the minor plaintiff to submit to an MRI under sedation after the defendant demonstrated negligible risk). Practice Note The purpose of the medical examination is to obtain medical information that is not otherwise ascertainable. Thus, questions posed by the examiner concerning the circumstances of the incident should be limited to the purpose of the examination. The examiner should be familiar with the factual allegations as well as the individual’s medical history; therefore, a medical questionnaire should not be necessary. The examinee should be briefed on the purpose and scope of the examination in advance.

(b)

Drugs and Anesthetics

Consistent with the balancing of need versus risk, an examination requiring the use of drugs or anesthetics “that would render the plaintiff in a personal injury action unconscious for at least part of the examination has been met with disapproval.” 23 Am. Jur. 2d Depositions and Discovery § 299 (1983). The use of anesthesia or drugs, therefore, is strongly discouraged. The only exception seems to be for examination of an injured eye, where mild drugs or anesthetics may be used.

19–14

PHYSICAL AND MENTAL EXAMINATIONS

(c)

§ 19.2

X-rays

Courts have the power to order radiology examinations. A court may require the moving party to make “a separate showing of ‘good cause’ and to restrict the taking of radiographs to those found to be reasonable and necessary after defendant’s doctor has fully studied the x-ray films provided by the plaintiff’s physician.” 23 Am. Jur. 2d Depositions and Discovery § 300 (1983); see Tarte v. United States, 249 F.R.D. 856 (S.D. Fla. 2008) (describing x-rays and MRIs as routine medical procedures); Gale v. Nat’l Transp. Co., 7 F.R.D. 237, 238 (S.D.N.Y. 1946).

(d)

Blood and Other Chemical Analyses

Rule 35(a) explicitly permits blood testing, at least when a person’s blood group is in controversy. In Cardinal v. University of Rochester, the court allowed a blood test vena puncture, reasoning that the process had become ubiquitous and did not pose any appreciable degree of danger. Cardinal v. Univ. of Rochester, 71 N.Y.S.2d 614, 615 (Special Term 1946), aff’d, 69 N.Y.S.2d 352 (App. Div. 1947). The court in Cardinal also allowed the defendant’s physician to remove stomach contents for gastric analysis based upon a showing that the procedure was a commonly used and safe diagnostic procedure. Cardinal v. Univ. of Rochester, 71 N.Y.S.2d at 615. Similarly, in Adlerstein v. South Nassau Communities Hospital, 439 N.Y.S.2d 605, 610 (Special Term 1981), the plaintiff was required to submit to both a blood test and a semen test. The court found that so long as the procedures were performed pursuant to reasonable “conditions and safeguards,” there was no risk of danger or pain. Adlerstein v. S. Nassau Cmtys. Hosp., 439 N.Y.S.2d at 610. Still, it remains incumbent upon the movant to demonstrate that the proposed blood test will yield useful information. See Clement v. Merchs. Nat’l Bank of Mobile, 493 So. 2d 1350 (Ala. 1986). In Clement, the court affirmed a lower court’s denial of a motion for blood tests to determine the biological parents of an individual making a claim against an estate. Because only one relevant individual was a party to the case, and the court did not have the power to compel blood tests from the nonparties, the requested blood test would offer no insight regarding lineage. Clement v. Merchs. Nat’l Bank of Mobile, 493 So. 2d at 1354–55.

(e)

Vocational Experts

In many instances tests will be conducted to determine the extent of recovery after an injury. These will usually involve range of motion, dexterity, or loss of function, and aim to determine one’s residual earning capacity, one of the largest components of special damages. Vocational consultants can provide invaluable 19–15

§ 19.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

testimony regarding a plaintiff’s failure to mitigate damages by not returning to work in some other capacity that accounts for his or her limitations. In Massey v. Manitowoc Co., the federal District Court held that a request for examination by a vocational consultant was appropriate because the only true issue for trial was the plaintiff’s earning capacity. Massey v. Manitowoc Co., 101 F.R.D. 304 (E.D. Pa. 1983); see also Storms v. Lowe’s Home Ctrs., Inc., 211 F.R.D. 296, 297 (W.D. Va. 2002).

§ 19.2.9 Person Conducting the Examination A motion requesting a medical examination must identify the person conducting the examination. You should not only name the physician but also set out the physician’s credentials, including board certifications and areas of specialization. If the requested test requires more than general expertise, the motion should also describe the examiner’s experience in performing the test. Practice Note The qualifications of a physician performing a Rule 35 examination are subject to the same scrutiny as those of any other medical expert. You should anticipate a possible cross-examination regarding the physician’s expertise, sources of income, and other issues related to potential bias.

If the designated physician is no longer in active practice, the opposing party could object to the court on the grounds that the physician is not qualified to carry out the examination. Practice Note If an examining physician is a potential witness at trial, it may be useful to subpoena the physician’s examination notes. There may be inconsistencies between the notes and the examination report.

Rhode Island has incorporated the 1991 federal amendment to Rule 35 that expanded the definition of an acceptable examiner to include nonphysicians. In fact, the Committee Notes associated with Rhode Island’s 1995 amendment state: By its reference to examination “by a suitably licensed or certified examiner”, the rule empowers the court, in an appropriate case, to order examination by a clinical psychologist, dentist, or occupational therapist, as well as by a “physician” . . . . Super. R. Civ. P. 35, Committee Notes. 19–16

PHYSICAL AND MENTAL EXAMINATIONS

§ 19.2

§ 19.2.10 Persons Present at Examination If an examination is ordered, counsel for the examinee may seek to have counsel or some other third party present during the examination. The strategy is premised upon the belief that Rule 35 examinations are, in fact, adversarial discovery tools. Acosta v. Tenneco Oil Co., 913 F.2d 205 (5th Cir. 1990). Thus, absent an independent witness or recording of the examination and/or questioning, an examiner’s testimony concerning admissions made by the individual are difficult to contradict. Moreover, in the case of an individual with cognitive impairment, it may be difficult or impossible for the examinee to remember the circumstances and details of the examination in order to properly prepare to cross-examine the examiner. Although the Rhode Island Rule is silent regarding who may be present for an examination under Rule 35, the court likely has the power and discretion to determine who may attend. See Tarte v. United States, 249 F.R.D. 856 (S.D. Fla. 2008) (presence of third party or recording device at examination is within the sound discretion of the court); Robin v. Associated Indem. Co., 297 So. 2d 427 (La. 1973). Jurisdictions are split on the question though, generally, courts are reluctant to allow third-party observers at an ordered examination. Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 555 (D. Conn. 2006) (Rule 35 does not provide for anyone to be present); Cabana v. Forcier, 200 F.R.D. 9 (D. Mass. 2001); Gensbauer v. May Dep’t Stores Co., 184 F.R.D. 552 (E.D. Pa. 1999). A number of jurisdictions, such as California, Arizona, and Michigan, have adopted rules or statutes that expressly permit attendance by a third party, while in other states the common law permits examinee’s counsel to be present. See Kutner v. Urban, 17 Mass. L. Rptr. 49 (Super. Ct. 2003) (permitting counsel to attend only after a showing of good cause); Langfeldt-Haaland v. Saupe Enters., Inc., 768 P.2d 1144, 1146 (Alaska 1989); Cline v. Firestone Tire & Rubber, 118 F.R.D. 588 (S.D. W.Va. 1988). Other jurisdictions have banned the presence of counsel altogether. See, e.g., Cabana v. Forcier, 200 F.R.D. at 12; Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 628–34 (D. Kan. 1999); Holland v. United States, 182 F.R.D. 493, 495–96 (D.S.C. 1998). When an attorney’s presence is permitted, his or her involvement may be confined to objecting on the basis of form or questions that are outside the scope of the examination, such as liability. An examinee’s treating physician or expert physician is often permitted to be present at an examination provided that he or she merely observes the proceedings. Dasilva v. Gagliardo, 17 Mass. L. Rptr. 141 (Super. Ct. 2003).

19–17

§ 19.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Practice Note In suggesting a third party to attend or monitor and examination, keep in mind the ethical and legal considerations that may arise if that person becomes a witness in the case.

Following are factors that may be useful for considering whether the presence of a third party is necessary or desired: • allegations of past impropriety by the examining physician; • whether the examinee has any needs that require the presence of an attorney, such as mental disabilities, language barriers, or other conditions that would put the examinee in a vulnerable position; • whether the exam will be physically invasive or embarrassing; and • whether the exam will involve experimental or unusual methods.

§ 19.2.11 Examiner’s Report Pursuant to subsection (b) of Rule 35, the party or person examined may obtain from the moving party a copy of the examiner’s “detailed written report,” including the results of all tests undertaken, diagnoses, and conclusions. In addition, the examinee is entitled to receive like reports of all earlier examinations of the same condition. Upon any such request by the examinee, the movant then becomes entitled to request from the examinee any report, prior made or subsequent, relating to the same condition, unless the examinee is not a party or is not able to obtain such materials. Failure to make the reports available upon request, and consistent with any order of the court, could result in exclusion of the testimony of such examiner at trial, within the court’s sound discretion. A request for a report under Rule 35 also acts as a waiver of the doctor-patient privilege or any other privilege that may attach to any prior examinations of the individual for the same condition. See Cunningham v. Conn. Mut. Life Ins., 845 F. Supp 1403 (S.D. Cal. 1994). Practitioners should keep in mind that pursuant to subsection (b)(3) of the Rule, Rule 35(b) applies equally to examinations ordered by the court and those agreed to by the parties.

19–18

PHYSICAL AND MENTAL EXAMINATIONS

§ 19.3

§ 19.3

RECOURSE

Recourse to subdivision (a) of Rule 35 is addressed to the sound discretion of the court. Raymond v. Raymond, 252 A.2d 345 (1969). An order granting a motion for examination may include any protective measures that the court deems appropriate under the circumstances. At least one court has determined that a violation of Rule 35, standing alone, does not give rise to an independent cause of action or constitutional violation. Karlovetz v. Baker, 872 F. Supp. 465, 468 (N.D. Ohio 1994). The plaintiff in Karlovetz alleged that the defendants violated his rights to equal protection and due process in performing an unauthorized test for tuberculosis.

19–19

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

19–20

CHAPTER 20

Requests for Admissions Maurice J. Cusick § 20.1

Introduction ........................................................................ 20–1

§ 20.2

Drafting Requests............................................................... 20–2

§ 20.3

§ 20.4

§ 20.2.1

Mechanics ........................................................... 20–2

§ 20.2.2

Scope................................................................... 20–5

§ 20.2.3

Style .................................................................... 20–6

§ 20.2.4

Strategies for Using Requests Effectively ........... 20–7

Responding to Requests..................................................... 20–9 § 20.3.1

Responding to Requests in a Timely Manner...... 20–9

§ 20.3.2

Responding to Requests for Admission in a Proper Manner............................................ 20–10 (a)

Overview .................................................. 20–10

(b)

Admitting the Truth of a Matter ............... 20–10

(c)

Denying the Truth of a Matter.................. 20–10

(d)

Explaining Why You Cannot Truthfully Admit or Deny a Matter ............................20–11

(e)

Duty of Good Faith .................................. 20–13

(f)

Objecting to Requests .............................. 20–14

(g)

Supplementation....................................... 20–16

(h)

Moving for a Protective Order ................. 20–17

Moving to Determine the Sufficiency of Responses....... 20–18 § 20.4.1

Moving to Determine the Sufficiency of Answers......................................................... 20–18

20–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 20.5

§ 20.6

§ 20.4.2

Moving to Determine the Sufficiency of Objections......................................................20–18

§ 20.4.3

Default Admissions ............................................20–19

Moving to Withdraw or Amend Admissions...................20–19 § 20.5.1

Overview............................................................20–19

§ 20.5.2

Grounds for Withdrawal of Amendment............20–20 (a)

Grounds for Withdrawal ...........................20–20

(b)

Heightened Standard for Admissions Included in Pretrial Order .........................20–22

(c)

Standard of Review...................................20–22

Using Admissions to Win Your Case................................20–23 § 20.6.1

Using Admissions to Obtain Summary Judgment ............................................20–23

§ 20.6.2

Using Admissions at Trial..................................20–24

§ 20.6.3

Using Default Admissions .................................20–24

§ 20.6.4

Using Admissions in Other Proceedings............20–25

§ 20.6.5

Prohibition on Introduction of Denials into Evidence .....................................................20–25

§ 20.7

Sanctions for Failure to Admit .........................................20–25

§ 20.8

Conclusion .........................................................................20–26

20–ii

CHAPTER 20

Requests for Admissions Maurice J. Cusick

Scope Note This chapter is a guide to requests for admissions. It addresses a whole series of activities connected with the effective use of admissions as a tool to save time, eliminate areas of inquiry, and reduce the time required to try a case, including drafting requests, responding to requests, moving to determine the sufficiency of responses, moving to withdraw or amend admissions, using admissions prior to and during trial, and moving for sanctions. The chapter discusses both the procedural requirements and the strategic considerations involved in handling admissions successfully.

§ 20.1

INTRODUCTION

As is often said, Rule 36 of the Rhode Island Superior Court Rules of Civil Procedure is a powerful—and often underutilized—weapon in a litigator’s arsenal. See also Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, 8A Federal Practice and Procedure § 2252 (West 2d ed. 1994) (noting underutilization). Although their purpose is not necessarily to obtain information as is the case with the other discovery methods, when used properly requests for admissions under Rule 36 enable you to eliminate factual disputes and legal issues, end lawsuits, and save money. The Rhode Island Supreme Court has fully endorsed the use of admissions for these goals. Rule 36 establishes a “procedure . . . for facilitating the proof at the trial by weeding out facts and items of proof over which there is no dispute, but which are often difficult and expensive to prove.” 4A Moore, Federal Practice, ¶ 36.02 at 36–12 (1984). If the rule is to fulfill this undisputed function, the admissions provided by the rule must be considered binding. Otherwise, a party securing an admission could not rely upon its binding effect and thereby safely avoid the expense of preparing to prove the very matter on 20–1

§ 20.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

which he has obtained the admission. The purpose of the rule is thereby defeated. Cardi Corp. v. State, 524 A.2d 1092, 1095 (R.I. 1987) (citing Gen. Elec. Co. v. Paul Forsell & Son, Inc., 394 A.2d 1101, 1103 (R.I. 1978)). Requests are quite dangerous to the receiving party for precisely the same reasons. Moreover, failure to comply with the requirements of Rule 36 can trigger severe sanctions. This chapter is intended as a user’s guide to Rule 36. More specifically, the chapter addresses the following topics: • drafting requests, • responding to requests, • moving to determine the sufficiency of responses to requests, • moving to withdraw or amend admissions, • using admissions prior to and during trial, and • moving for sanctions.

§ 20.2

DRAFTING REQUESTS

§ 20.2.1 Mechanics Each request for admission must be set forth separately and in writing, and you must serve copies of all requests on all parties. You typically do not need permission from the court to serve requests, and you are not required to file requests with the court. As with most forms of discovery, requests for admissions are no longer filed with the court. In the 1980s and earlier, all discovery requests and responses were filed with the courts. As court files grew, clerks noted that a great deal of space was being taken up by these materials. Now, requests for admissions and responses thereto are not filed with the court until it is necessary to present them to the court for some purpose, such as for a ruling on the sufficiency of a response, when used at trial, or when requested by the court.

20–2

REQUESTS FOR ADMISSIONS

§ 20.2

In theory, there is no limit on the number of requests that you may serve. See Super. R. Civ. P. 36. However, courts have warned that “[i]t is an abuse to deluge [your adversary] with successive banks of requests for admissions hoping that he may inadvertently give away his case.” Caron v. Gen. Motors Corp., 643 N.E.2d 471, 473 n.5 (Mass. App. Ct. 1994). Therefore, a rule of reasonableness applies: In a highly complex case, you may serve what would be considered an improper number of requests in a simple case. See, e.g., Photon, Inc. v. Harris Intertype, Inc., 28 F.R.D. 327, 328 (D. Mass. 1961) (704 requests, set forth in 114 legal-sized pages). There are differences between filing in District Court and in Superior Court. In both courts, if a timely answer is not given, the matter “is admitted” and “[n]o further action by the party requesting the admission is required.” Super. R. Civ. P. 36, Committee Notes; see Travelers Ins. Co. v. Builders Res. Corp., 785 A.2d 568 (R.I. 2001). In District Court, if you desire to file admissions within twenty days of the filing of the complaint, leave of court, even without notice to the other side, must be obtained. See Dist. Civ. R. P. 36(a). If you are confirming the authenticity of a document, that document must also be provided with the admission. In District Court, the party providing for the discovery can dictate the amount of time in which you must respond (not to be less than ten days), so read the introduction to the admissions carefully. The receiving party can always ask for an extension from the District Court. Dist. Civ. R. P. 36(a). In the event that the admission is not denied within the allotted time, it “shall be deemed admitted.” Dist. Civ. R. P. 36(a). The responding party must either deny the matter, state “in detail” why he or she cannot specifically admit or deny the matter (this answer should be rare), or file an objection. That objection must also request a hearing date. Failure to follow any of these formalities may result in the admissions being “admitted” by the court, and there are numerous cases so holding. Any of the admissions that can be answered must be answered under the plain wording of the Rule. If any admission can be admitted in part and denied in part, that must also be accomplished. Also, the answers must be under oath. Admissions are only for use in that particular action and not for use in any other case. See Dist. Civ. R. P. 36(b). In Superior Court, admissions can accompany the complaint. No leave of court is required in Superior Court. Super. R. Civ. P. 36(a). You may ask for opinions of fact or of the application of law to fact. (While this is not provided for under the District Court rule, there appears to be no reason why it would not be equally available there too.) The receiving party has thirty days in which to respond to the admissions. If served with the complaint, forty-five days is allowed. The court may also shorten or lengthen the time in which to answer. In Superior Court, the answers must be signed by the lawyer or the client (differing from 20–3

§ 20.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

District Court) and there is no requirement that they be sworn to (again differing from District Court). Previously, the answers had to be “sworn,” but this is no longer required. Compare Demers v. Demers, 557 A.2d 1187, 1190 (R.I. 1989), with Super. R. Civ. P. 36(a) (current version). “Good faith” is required in answering admissions and, again, if a party can answer a portion of a request, he or she should do so. If the party wishes to give a lack of information or knowledge as an answer, that party must also state that he or she has made a “reasonable inquiry” and is still unable to answer. You may not answer that it is a “genuine issue for trial” under the very specific wording of the Rule. Super. R. Civ. P. 36(a). Practice Note Remember, the discovery process is designed to weed out cases— not for gamesmanship. The use of requests for admissions is designed to facilitate proof of facts and items over which there is no dispute but which are expensive or difficult to prove. Serial requests for admissions aimed at creating a synoptic characterization of the facts or creating a litany of readily provable facts to be used as a narrative to be read to the jury are frowned upon by courts.

In the event that a party does not like the answers given, that party may move for a review by the court. The court is empowered to “order either that the matter is admitted [so you may not get a second chance to amend your answer] or that an amended answer be served.” Super. R. Civ. P. 36(a). The court may also conclude that the answer be made at a certain time in the future or at the pretrial conference, Super. R. Civ. P. 36(a), although that may be too late for the discovering party’s trial preparation. If not answered in a timely matter, or actually admitted, the matter is “conclusively admitted.” The admitting party can move to withdraw or amend any admission. Super. R. Civ. P. 36(b). The judge may allow amendment of a prior admission if the court finds that the action will be “subserved” by the admission and the party gaining the admission cannot show prejudice. Super. R. Civ. P. 36(b). This is an explicit part of the Superior Court rule, but is absent from the District Court version. Again, admissions are only for use in that particular action and not for use in any other case; however, the Superior Court rule contains yet another exception, for “a subsequent action between the same parties involving the same claim.” Super. R. Civ. P. 36(b). If a motion is filed, an award of attorney fees and costs is permitted under Super. R. Civ. P. 37(a)(4). See Super. R. Civ. P. 36(a). Practice Note There are many distinctions between the District Court and the Superior Court rules, and it is incumbent that the practitioner be aware

20–4

REQUESTS FOR ADMISSIONS

§ 20.2

of the differences when preparing or responding to a request for admission.

§ 20.2.2 Scope Requests enable you to seek admissions about nearly “any matter” not privileged, provided the information sought is either admissible or “reasonably calculated to lead to the discovery of admissible evidence.” Super. R. Civ. P. 26(b)(1). The following are proper subjects for admissions: • statements of fact, • opinions about facts, • application of the law to the facts of your case, and • genuineness of documents. Practice Note When serving requests concerning the genuineness of documents, you must serve copies of the documents along with the requests, unless • your adversary already has the documents, • you otherwise provide the documents to your adversary, or • you make the documents available for inspection and copying.

The following are improper subjects for requests: • abstract legal conclusions, unrelated to the facts of your case; • application of the law to hypothetical facts; • trial strategy; and • privileged or confidential information. Practice Note Keep in mind that you may serve requests concerning crucial facts, including facts that establish jurisdiction or entitle you to summary judgment.

20–5

§ 20.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 20.2.3 Style Requests give you the power to obtain statements of fact that ultimately may be presented to the judge and the jury as the irrebuttable admissions of your adversary. Take advantage of this power by crafting effective requests. Because one or more of your admissions may eventually be placed before a very busy judge or a jury, you should write in plain English, not legalese. Each request should be a crisp, concise, declarative statement of a single fact that “can be denied or admitted with an absolute minimum of explanation or qualification.” United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 968 (3d Cir. 1988) (quoting Havenfield Corp. v. H & R Block, Inc., 67 F.R.D. 93, 96 (W.D. Mo. 1973)). “[E]xcept in a most unusual circumstance, [each request] should be such that it could be answered yes, no, the answerer does not know, or a very simple direct explanation given as to why he cannot answer . . . .” United Coal Cos. v. Powell Constr. Co., 839 F.2d at 968 (quoting Johnstone v. Cronlund, 25 F.R.D. 42, 46 (E.D. Pa. 1960)). Often, written admissions are much too complicated or contain “half-truths” leaving room for any number of grounds for the admission to be “denied.” To the contrary, an admission should be “phrased simply and directly so that it can be admitted or denied without explanation.” Charles A. Wright, Arthur R. Miller & Richard L. Marcus, 8A Federal Practice and Procedure § 2258 (West 2d ed. 1994). This practice is the far better choice than the complicated admissions usually produced, which go nowhere. For this same reason, lengthy introductions or “definitions” preceding admissions should be avoided. Each request for admission should speak for itself. The effectiveness of an admission, whether used at summary judgment stage or at trial, correlates directly with its simplicity and clarity. Practice Note Be careful to leave as little “wiggle room” in your requests as possible. If you draft an ambiguous request, that ambiguity will be construed against you. Talley v. United States, 990 F.2d 695 (1st Cir.), cert. denied, 510 U.S. 867 (1993). Moreover, “[l]oose phrasing or, worse, attempting to pack too many facts into each request, can allow [your adversary] to escape the thrust of the request without answering falsely.” James W. Smith & Hiller B. Zobel, Rules Practice (7 Massachusetts Practice Series) § 36.3 (West 1975 & Supp. 2002). Just as importantly, judges will not compel a party to admit or deny an ambiguous request for admissions.

Barring exceptional circumstances, do not incorporate any material into your requests by reference. United States v. Watchmakers of Switzerland Info. Ctr. Inc., 25 F.R.D. 197, 200 (S.D.N.Y. 1959). Even then, admissions can be confusing. 20–6

REQUESTS FOR ADMISSIONS

§ 20.2

For example, in Water Street Development, Ltd. v. J.W. Corr Agency, Inc., 539 A.2d 967, 970 (R.I. 1988), the plaintiffs “admitted” the then under construction restaurant was “occupied” during construction, but for the court that did not mean the same thing as “occupied” under the insurance contract. Keep in mind, too, that you cannot always force your adversary to endorse your interpretation of the facts. One federal District Court, for example, has stated that the opposing party properly may object to requests to admit “a synoptic characterization . . . or a gloss as to [the] intendment” of documents. Lakehead Pipe Line Co. v. Am. Home Assurance Co., 177 F.R.D. 454, 457 (D. Minn. 1997).

§ 20.2.4 Strategies for Using Requests Effectively Once litigation has begun, consider serving exhaustive requests as soon as possible. This tactic has the potential to accomplish three goals: • Elicit important admissions from the other side before it has refined its strategy and theory of the case. • Eliminate disputes about facts that are difficult or costly to prove before you engage in expensive discovery, motion practice, or trial preparation. This is an excellent way to keep costs down and, indeed, some facts may be impossible to prove any other way than through requests for admissions. In fact, your opponent may stipulate to certain facts. The stipulation can be in the form of an admission or as a separate, stand-alone stipulation document. However, note that in Rhode Island a different standard is applied in reviewing those two types of documents. See In re McBurney Law Servs., Inc., 798 A.2d 877 (R.I. 2002). You can even shorten trial time and the number of witnesses by just having the judge explain that the opposing party “has admitted . . . .” • Limit your adversary’s ability to posture during settlement negotiations (thus making settlement more likely). Absent a scheduling order setting the close of discovery, there is no deadline for propounding requests for admissions, although the court has the inherent authority to protect a party from having to respond to requests for admissions propounded shortly before trial. Certainly it is best to request them at the beginning of the case, usually right after the answer, before a party becomes entrenched in its position, even if wrong. I typically send out two to three sets of interrogatories, and demands for productions, and two sets of admissions. It is best to keep

20–7

§ 20.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

a running legal pad in the front of your file of admissions, interrogatories and requests for documents you would like to ask for. Practice Note Do not refrain from serving requests simply because you believe that your adversary will stipulate to certain facts at the pretrial conference or at any other time. If your adversary decides not to make the anticipated stipulations, it may be too late to serve requests.

Some practitioners use requests for admissions to set in stone evidence that they have gathered through other means. If, for example, you believe that you have proven a fact at a deposition, you may serve a request that clearly distills that fact without any of the clutter that may surround it in the transcript. For instance, if you asked an open-ended question at the opposing party’s deposition that elicited a verbose answer in which the deponent admitted a key fact, a narrowly focused request asking your adversary simply to admit the key fact will create a clearer, more concise record. If your adversary admits the fact, it is conclusively established and cannot be rebutted. If your adversary denies the matter, you can factor that denial into your discovery and trial strategy. However, caution must be exercised in using requests for admission for these purposes because the rationale behind Rule 36 is to facilitate proof of facts and items over which there is no dispute, but which are often difficult and expensive to prove. 4A Moore, Federal Practice ¶ 36.02 at 36–12 (1984). Practice Note If using requests for admission, keep in mind that you may want to propound one or more interrogatories requiring your adversary to describe in detail all facts on which the adversary bases his or her denials. Because Super. R. Civ. P. 33(b) limits you to thirty interrogatories as of right, pose this interrogatory in a manner that covers all requests served to date, although this practice can be objectionable as being nonspecific and some courts may consider this as more than one interrogatory. I have seen interrogatories with seven subparts be counted as seven different interrogatories under a limiting cap. If you believe you may serve additional requests later in the discovery period, be sure to save an interrogatory that can be served in conjunction with any subsequent requests to require your adversary to describe in detail the factual basis on which any of your subsequent requests is denied.

20–8

REQUESTS FOR ADMISSIONS

§ 20.3

§ 20.3

RESPONDING TO REQUESTS

Whenever requests for admissions come into your office a bell should go off in your head. Requests for admission are not a benign discovery tool—these requests should go to the top of the pile. They should not merely be placed in a “to do” pile or given to a law clerk or associate without oversight and precise instructions. They need to be answered immediately. When you are on the receiving end of requests, you must proceed with extreme caution. If you fail to respond in a manner that is both timely and proper, the requested fact may be deemed conclusively admitted. In Cardi Corp. v. State, 524 A.2d 1092, 1094 (R.I. 1987), answers to admissions that were one day late, after numerous extensions were granted, were deemed admitted against the defendant’s interests. Because the consequences are so severe, one federal district court has held that failing to respond to a request promptly and properly is “compelling evidence of negligence” for purposes of legal malpractice. In re PCx Corp., No. 94-C-2309, 1994 WL 700170, at *3 (N.D. Ill. Dec. 13, 1994).

§ 20.3.1 Responding to Requests in a Timely Manner If you fail to respond to a request in a timely manner, the requested fact is conclusively admitted by default. See Cardi Corp. v. State, 524 A.2d 1092, 1093 (R.I. 1987); Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 480 N.E.2d 1, 4 (Mass. 1985). In general, you must respond to requests within thirty days after service. Super. R. Civ. P. 36(a). If you represent the defendant, however, you are not required to respond sooner than forty-five days after service of the summons and complaint. Unless the court orders otherwise, you and opposing counsel may modify these deadlines by written stipulation. In addition, the court may modify any deadline if your adversary is uncooperative. Although Rule 36 is not explicit on this point, the court has the discretion and inherent authority to extend a deadline when doing so will subserve the merits without causing prejudice to the party who served the request. See Charles A. Wright, Arthur R. Miller & Richard L. Marcus, 8A Federal Practice and Procedure § 2257 (West 2d ed. 1994).

20–9

§ 20.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 20.3.2 Responding to Requests for Admission in a Proper Manner (a)

Overview

You must respond to requests in writing, precede each response with the corresponding request, and serve all responses on all parties. You are not required to file responses with the court. You must respond to each request in one of the following ways: • admit the truth of the matter, • deny the truth of the matter, • explain why you cannot truthfully admit or deny the matter, • object to the request, or • move for a protective order.

(b)

Admitting the Truth of a Matter

It is sufficient, and most common, to respond with a single word: “admitted.” But double check and closely read the admission before finalizing your answer; once released, it is hard to get the genie back into the bottle.

(c)

Denying the Truth of a Matter

If the requested admission is wholly untrue, you should respond with a single word: “denied.” As one court has observed, “Anything else may invite difficulty.” Sabian v. Gentle Movers, 1997 Mass. App. Div. 117, 120 (1997) (quoting James W. Smith & Hiller B. Zobel, Rules Practice (7 Massachusetts Practice Series) § 36.5 (West 1975)). If you must respond in some other manner, your denial must be “specific” and it must “fairly meet the substance” of the request. Significantly, “an evasive denial . . . may be deemed an admission.” Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981). When good faith requires you to qualify an answer or deny only part of a request, you must “specify so much of it as is true and qualify or deny the remainder.” Super. R. Civ. P. 36. Be careful about vague denials. Let’s say that an admission states that “the car was white.” However, you deny because your client’s car is really “Matterhorn gray,” a close relative of white. The court may not see the technical denial your 20–10

REQUESTS FOR ADMISSIONS

§ 20.3

way, and as we shall see, there can be ramifications. The better practice is to “deny” but state that your client’s car is “Matterhorn gray.” Also, although there is some authority in support of denying an entire request that contains “interdependent, compound issues” if any part is untrue, Harris v. Oil Reclaiming Co., 190 F.R.D. 674, 678 (D. Kan. 1999), the Rhode Island rule requires that “a party shall specify so much of it as is true and qualify or deny the remainder.” As noted by the Rhode Island Supreme Court in a case discussing the proper and improper use of admissions, “Our civil rules impose an obligation on all parties to litigate only facts that are truly contested.” Cardi Corp. v. State, 524 A.2d 1092, 1096 (R.I. 1987). Hair splitting over differing shades of gray will not satisfy that test. Example Assume the following request: Admit that, at approximately 2:00 p.m. on Friday, August 7, 1999, defendant Jane Smith met with plaintiff John Davis. You may not respond with a flat “denied” simply because August 7, 1999 was, in fact, a Saturday. Instead—if the statement is otherwise true—you should respond as follows: Denied to the extent that August 7, 1999 was not a Friday. Otherwise admitted.

Be careful about correctly signing and answering admissions. In Massachusetts, the Appellate Division has stated that the wrong person signing a response “fail[s] to constitute an answer” and, therefore, constitutes a conclusively established default admission. Meagher v. U.S. Fid. & Guar. Co., 1994 Mass. App. Div. 134, 136 (1994). This was the rule in Rhode Island also, until the Superior Court rule was changed a few years back.

(d)

Explaining Why You Cannot Truthfully Admit or Deny a Matter

Rule 36 recognizes that your adversary may devise requests that your client is incapable of answering. If this occurs, you may properly respond by explaining “specifically” and “in detail” why your client cannot truthfully admit or deny the request. You may not merely state, as so often occurs, that you cannot admit nor deny the matter. You must set forth in detail why this is so. Charles A. Wright, Arthur R. Miller & Richard L. Marcus, 8A Federal Practice and Procedure, § 2261 (West 2d ed. 1994) (“A general statement that it can neither admit nor deny, unaccompanied by reasons, will be held an insufficient response.”). You may not attribute this inability to lack of information or knowledge unless you state that 20–11

§ 20.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• your client has conducted a “reasonable inquiry,” and • “the information known or readily obtainable” is insufficient to enable your client to admit or deny the matter. The Rule neither defines the terms “reasonable” and “readily obtainable” nor addresses the contours of your client’s duty to make a “reasonable inquiry.” There are, however, several cases that shed some light on these issues.

Defining “Reasonable” and “Readily Obtainable” Predictably, “[w]hat constitutes ‘reasonable inquiry’ and what material is ‘readily obtainable’ is a relative matter that depends upon the facts of each case.” Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. 302, 304 (M.D.N.C. 1998) (quoting T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., 174 F.R.D. 38, 43 (S.D.N.Y. 1997)). Generally, a reasonable inquiry is limited to “review and inquiry of those persons and documents that are within [your client’s] control.” Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. at 304 (quoting T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., 174 F.R.D. at 43). One federal district court has stated that information is “readily obtainable” if the client “can make the necessary inquiries without extraordinary expense or effort.” Al-Jundi v. Rockefeller, 91 F.R.D. 590, 594 (W.D.N.Y. 1981). As a leading federal treatise put it, “courts generally will not require [your client] to . . . go to great lengths to obtain the information needed to respond to a request.” James W. Moore et al., 7 Moore’s Federal Practice § 36.11[5][d] (Matthew Bender 3d ed. 1997). More specifically, a reasonable inquiry includes investigation and inquiry of any of [your client’s] officers, administrators, agents, employees, servants, enlisted or other personnel, who conceivably, but in realistic terms, may have information which may lead to or furnish the necessary and appropriate response. In this connection, relevant documents and regulations must be reviewed as well. Herrera v. Scully, 143 F.R.D. 545, 548 (S.D.N.Y. 1992) (quoting Diederich v. Dep’t of Army, 132 F.R.D. 614, 619 (S.D.N.Y. 1990)). A “reasonable inquiry” may also include gathering information from third parties “when there is some identity of interest manifested . . . and when there is no manifest or potential conflict between [your client] and the third party.” Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. at 304. 20–12

REQUESTS FOR ADMISSIONS

§ 20.3

Contours of Your Client’s Duty to Make a “Reasonable Inquiry” Do not assume that a response will comply with Rule 36 merely because it parrots the text of the Rule. Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981). Instead, your client actually must make all reasonable efforts, and then state that he or she has made a “reasonable inquiry” and that the information “readily available” is insufficient to enable him or her to admit or deny the matter. Moore, 7 Moore’s Federal Practice § 36.11[5][e]. These statements must be “specific” and “in detail.” See Johnson Int’l Co. v. Jackson Nat’l Life Ins. Co., 812 F. Supp. 966, 988 (D. Neb. 1993), aff’d, 19 F.3d 431 (8th Cir. 1994) (citing Charles A. Wright & Arthur R. Miller, 8 Federal Practice and Procedure § 2261, at 730 (West 1970)). Practice Note It is good practice to inquire at depositions concerning the “reasonable inquiry” made in connection with requests for admissions. Witnesses who sign responses to requests for admissions should be prepared to respond to questions concerning the level or degree of inquiry undertaken in connection with their responses.

(e)

Duty of Good Faith

When responding to requests, both you and your client must make all reasonable efforts to comply in good faith with both the letter and the spirit of Rule 36. In criticizing an attorney appointed commissioner for the sale of real estate for serving responses that were evasive and nonresponsive, the court deemed the matter admitted as a sanction for his utter failure to respond candidly to the request, and it was clear that the response tendered was not in good faith. Demers v. Demers, 557 A.2d 1187 (R.I. 1989). You are taking an unneeded risk with your reputation when you “roll the dice” and decide to play games with discovery. In all likelihood whatever you are attempting to hide will come out eventually. Typically, if you have a problem in the case, it is better to address it now. As they say, often the cover-up is worse than the offense. The Ninth Circuit has stated: “Parties may not view requests for admission as a mere procedural exercise requiring minimally acceptable conduct. They should focus on the goal of the Rules, full and efficient discovery, not evasion and word play.” Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936 (9th Cir. 1994). As one federal district court put it, “The rule requires absolute good faith and truthfulness . . . and any responses which seek to evade or avoid . . . will not be countenanced.” Dulansky v. Iowa-Ill. Gas & Elec. Co., 92 F. Supp. 118, 124 (S.D. Iowa 1950). Keep in mind that most judges will have little tolerance for counsel who have not insisted that their client make a good faith effort to obtain the information necessary to respond

20–13

§ 20.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

to a well-crafted request for admission and that Super. R. Civ. P. 11 sanctions could result from an ill-conceived response. Applying these principles, the First Circuit has affirmed a federal district court’s decision to deem matters admitted as a remedy for “intransigence during discovery.” United States v. Kenealy, 646 F.2d 699, 703 (1st Cir.) (criticizing “opaque, generalized, and tardy denials”; stating that Rule 36 “requires specificity, detailed explanation when a truthful answer cannot be framed, good faith, and fairness”), cert. denied, 454 U.S. 941 (1981). Ethics Commentary When responding to requests, bear in mind that you have a duty to comply at all times with the Rules of Professional Conduct. Among many other things, this means that you have an ethical obligation “to make reasonably diligent effort[s] to comply with a legally proper discovery request by an opposing party.” R. Prof. C. 3.4(d); see also R. Prof. C. 3.1–3.3 (and comments).

(f)

Objecting to Requests

You may refuse to respond to a request on the ground that it is objectionable. In order to preserve your client’s rights, you must state the reasons for your objection in writing. In addition, you must respond to every part of every request that is not objectionable. James W. Moore et al., 7 Moore’s Federal Practice § 36.11[4] (Matthew Bender 3d ed. 1997). At least one court has criticized the process of both objecting to and denying a request for admission: “This is poor drafting. A party should admit, object or deny, and to both object and deny . . . could create confusion.” Russo v. Baxter Healthcare Corp., 51 F. Supp. 2d 70, 79 n. 3 (D.R.I. 1999), Practice Note You should object to requests when appropriate to do so within the ethical bounds of zealous advocacy. If you admit a request by failing to respond to it or if you fail to object to an improper request, you waive any future discovery objection to that request. Pleasant Hill Bank v. United States, 60 F.R.D. 1, 4 n.1 (W.D. Mo. 1973); Moore, 7 Moore’s Federal Practice § 30.11[5][c]. The waiver would not, however, compromise your client’s right to assert any pertinent objections to the admissibility of the admitted fact at the summary judgment or trial phase of the case. See S. Kemble Fischer Realty Trust v. Bd. of Appeals of Concord, 402 N.E.2d 100, 101–02 (Mass. App. Ct.), cert. denied, 449 U.S. 1011 (1980); see also Walsh v. McCain Foods, Ltd., 81 F.3d 722, 725 (7th Cir. 1996); Simien v. Chem.

20–14

REQUESTS FOR ADMISSIONS

§ 20.3

Waste Mgmt., Inc., 30 F. Supp. 2d 939, 942 n.3 (W.D. La. 1998), aff’d, 174 F.3d 199 (5th Cir. 1999).

Proper Objections You may object to a request that seeks an admission concerning an improper subject. More specifically, a request is objectionable if your adversary seeks to have your client admit facts or items that are • irrelevant; • inadmissible; • interposed for an improper purpose, such as constituting a synoptic characterization of the facts or attempting to gloss as to the intendment of documents; • abstract legal conclusions unrelated to the facts of your case; • applications of the law to hypothetical facts; • trial strategy; or • privileged or confidential information. Practice Note Courts are not impressed with boilerplate objections that include all the possible grounds for an objection. The objection should be tailored to the specific request. Boilerplate objections may cause the court to treat the request to be admitted.

In addition, you may object to a request because it is vague or ambiguous. You may also object to a request if your adversary fails either to furnish documents or to make them available for inspection and copying. Practice Note A request that asks you to apply the law to the facts of your case “may create disputes . . . which are best resolved in the presence of the judge after much or all of the other discovery has been completed.” Fed. R. Civ. P. 36, Advisory Committee’s Note (1970). If you receive such a request, it is often a good idea to object. If your adversary moves to determine the sufficiency of your objection, you may request that the court invoke its authority under Rule 36 to defer its ruling until after further discovery has been completed.

20–15

§ 20.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

In Rhode Island, privileges are “strictly construed and limited to [its] intended purpose.” Moretti v. Lowe, 592 A.2d 855, 857 (R.I. 1991). Therefore, in the context of Rule 36, courts tend not to sustain objections based on the attorney-client privilege, because a party generally can admit or deny a particular fact without revealing the substance of attorney-client communications concerning that fact. See Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (quoting Gaumond v. Trinity Repertory Co., 909 A.2d 512, 516 (R.I. 2006)) (quoting Morretti v. Lowe, 592 A.2d 855, 857 (R.I. 1991) and Consolidation Coal Co. v. Bucyris-Erie Co., 432 N.E.2d 250, 258 (Ill. 1982)); Edward M. Swartz & Elly D. Swartz, 5 Massachusetts Pleading and Practice § 36.4[2] (Matthew Bender 2000). The objecting party should also designate a date for the hearing of the objections. See Cardi Corp. v. State, 524 A.2d 1092, 1094 (R.I. 1987).

Improper Objections You may not object to a request on any of the following grounds: • the request contains an objectionable assumption, • your adversary will be unable to prove the matter at trial, or • the request presents a genuine issue for trial. The proper response to each of these kinds of requests is an admission, a denial, or a statement that your client is unable to admit or deny the matter. Although you may not object to a request solely on the basis that it presents a genuine issue for trial, there is persuasive authority suggesting that you may cite this reason in support of your client’s inability to admit or deny the matter. See Fed. R. Civ. P. 36, Advisory Committee’s Note (1970).

(g)

Supplementation

Among other related duties, you have a general duty “seasonably” to supplement or amend a response to a request for discovery if you learn either that it was incorrect when made or that “the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.” Super. R. Civ. P. 26(e)(2).

20–16

REQUESTS FOR ADMISSIONS

§ 20.3

In the context of Rule 36, this means that you may have a duty seasonably to • supplement or amend denials, statements that your client is unable to admit or deny particular facts, and objections; and • file a motion to withdraw or amend an admission (because you cannot withdraw or amend an admission without leave of court). Charles A. Wright, Arthur R. Miller & Richard L. Marcus, 8A Federal Practice and Procedure § 2264 (West 2d ed. 1994).

(h)

Moving for a Protective Order

The final way in which you may respond to a request is by filing a motion for a protective order under Super. R. Civ. P. 26(c) before the court in which the action is pending. For “good cause shown,” the court “may make any order which justice requires” to protect you from any of the following: • annoyance, • embarrassment, • oppression, or • undue burden or expense. In ruling on your motion, the court will balance the burden that you face against the legitimacy of your adversary’s need for the requested information. James W. Moore et al., 7 Moore’s Federal Practice § 36.11[5][e] (Matthew Bender 3d ed. 1997). According to the advisory committee’s note on Fed. R. Civ. P. 36, you may obtain a protective order if your adversary’s requests are “so voluminous and so framed that [you find] the task of identifying what is in dispute and what is not unduly burdensome.” Fed. R. Civ. P. 36, Advisory Committee’s Note (1970). That said, a federal district court stated nearly thirty years ago that it was “well-settled” that mere burdensomeness is not sufficient grounds for a protective order . . . , but the burden must be undue in the light of all the circumstances. Because rule 36 admission requests serve the highly desirable purpose of eliminating the need for proof of issues upon trial, there is strong disincentive to finding an undue burden where the requested party can make the necessary inquiries without extraordinary expense or effort . . . . Al-Jundi v. Rockefeller, 91 F.R.D. 590, 594 (W.D.N.Y. 1981). 20–17

§ 20.4

§ 20.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

MOVING TO DETERMINE THE SUFFICIENCY OF RESPONSES

§ 20.4.1 Moving to Determine the Sufficiency of Answers If you are not satisfied with an answer, you bear the burden of moving to determine its sufficiency. If the court determines that the answer does not comply with the requirements of Rule 36, “it may order either that the matter is admitted or that an amended answer be served.” Super. R. Civ. P. 36(a). Significantly, this language is permissive rather than mandatory. You are entitled to answers that clearly respond to each part of each request. If you receive a response that is unintelligible or nonresponsive, you should move to have the court deem it insufficient. If you are challenging an alleged inability to admit or deny, you bear the burden of establishing either that • your adversary failed to conduct a reasonable inquiry; or • your adversary was, in fact, able to admit or deny the matter. Rule 36 does not authorize the court “to prospectively render determinations concerning the accuracy of a denial . . . or to order that the subject matter of the request be admitted because [your adversary’s] unequivocal denial is asserted to be unsupported by the evidence.” Lakehead Pipe Line, Inc. v. Am. Home Assurance Co., 177 F.R.D. 454, 458 (D. Minn. 1997). Accordingly, you cannot move to determine the sufficiency of a denial on this ground. Instead, the proper procedure is to prove the matter at trial, then move for sanctions. If the court orders your adversary to amend a response and the amended version fails to cure the deficiency that you have identified, as it is a request for admission, you should move to have the amended response deemed admitted. Paul G. Garrity & James A. Frieden, 2 Massachusetts Standardized Civil Practice Forms 36a-3 (Little, Brown 1986).

§ 20.4.2 Moving to Determine the Sufficiency of Objections If you disagree with an objection, you bear the burden of moving to determine its sufficiency. If you fail to do so, the objection will stand and the matter will not be admitted. See Caron v. Gen. Motors Corp., 643 N.E.2d 471, 474 (Mass. App. Ct. 1994), review denied, 646 N.E.2d 1071 (Mass. 1995). Once you have 20–18

REQUESTS FOR ADMISSIONS

§ 20.4

filed your motion, your adversary bears the burden of establishing that the objection is justified. James W. Smith & Hiller B. Zobel, Rules Practice (7 Massachusetts Practice Series) § 36.8 (West 1975 & Supp. 2002). If your adversary fails to carry this burden, the court “shall order that an answer be served” or that the matter is admitted. Super. R. Civ. P. 36(a). Federally, you may be required to challenge objections to admissions or face the inability to collect attorney fees. See Russo v. Baxter Healthcare Corp., 51 F. Supp. 2d 70, 78 (R.I. 1999). However, Russo notes that this issue is debated amongst the circuits. You can move to have the court confirm the “effectiveness of the admissions” if you have any doubt about them, as was done in Cardi Corp. v. State, 524 A.2d 1092, 1094 (R.I. 1987).

§ 20.4.3 Default Admissions If your adversary fails to respond to your requests within the allotted time, those requests are admitted automatically and conclusively, at which point they cannot be rebutted. Accordingly, you have nothing to gain by filing a motion to compel responses and there is no need to do so. Once you have obtained default admissions, technically you may move to have the court deem the facts admitted. It is generally unwise to assert such a motion, however, because it invites your adversary to move to withdraw the default admissions. In Rhode Island there is General Electric Co. v. Paul Forsell & Son, Inc., 394 A.2d 1101 (R.I. 1978), noting that admissions must be considered binding as to allow a party who has produced them to rely upon them.

§ 20.5

MOVING TO WITHDRAW OR AMEND ADMISSIONS

§ 20.5.1 Overview Once your client admits a relevant fact or application of law, the matter is conclusively established in the case unless the court grants a motion permitting your client to amend or withdraw the admission. You cannot rebut the admitted matter, and “[t]he judge may not simply decide that he finds other evidence relating to the admitted matter more credible than the admission.” Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 480 N.E.2d 1, 6 (Mass. 1985). In all likelihood, any subsequent attempt to introduce evidence that contradicts the admitted matter will only waste time and jeopardize your credibility with the court; or, the court will simply not allow inconsistent evidence to be admitted to override the plain application of the rule governing admissions, or to confuse the jury. The better approach, assuming you have a good-faith basis for doing so, is to file a motion 20–19

§ 20.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

under Rule 36(b) to amend or withdraw any mistaken or inadvertent admissions as soon as possible. Note that in Industrial National Bank v. Patriarca, 502 A.2d 336, 338 (R.I. 1985), the excuse of being “at a loss to explain the failure to respond” to admissions was considered to be no excuse at all. Practice Note To make admissions and then to unilaterally attempt to avoid them without receiving leave of court can lead to substantial sanctions. See R.I. Insurers’ Insolvency Fund v. Leviton Mfg. Co., 763 A.2d 590, 594, 598–99 (R.I. 2000).

§ 20.5.2 Grounds for Withdrawal of Amendment (a)

Grounds for Withdrawal

In Rhode Island, an admission may be withdrawn if the following test is satisfied: • the admitting litigant has acted diligently, • adherence to the admission might cause a suppression of the truth, and • the withdrawal can be made without prejudice to the other party. Gen. Elec. Co. v. Paul Forsell & Son, Inc., 394 A.2d 1101 (R.I. 1978); In re McBurney Law Servs., Inc., 798 A.2d 877, 883 (R.I. 2002). However, if you have missed the deadline it is hard to satisfy the first requirement that you have “acted diligently.” The Rhode Island Supreme Court, in discussing admissions, in dicta has indicated that “[i]n order to establish diligence, a party must, at minimum, make a showing of what would amount to ‘excusable neglect.’” Cardi Corp. v. State, 524 A.2d 1092, 1095 (R.I. 1987). Also, in discussing the General Electric case, the court stated that still “the policy considerations underlying Rule 36 require that an admission entered under the rule must be deemed to be conclusively established and binding on the admitting party.” Cardi Corp. v. State, 524 A.2d at 1095. There are federal cases that have not allowed admissions to circumvent the truth, despite the matter being technically admitted. In Rhode Island, the party seeking to remove the admission “would have to point out what facts were actually contrary to the admissions.” Cardi Corp. v. State, 524 A.2d at 1096. This is easier said than done, as evidenced by the Cardi case, since rarely will an admission actually be “contrary” to the facts. In Massachusetts, the Supreme Judicial Court has recognized that because the effect of Rule 36 “may be unduly harsh,” the trial court’s ability to permit withdrawal 20–20

REQUESTS FOR ADMISSIONS

§ 20.5

or amendment of admissions “is essential to avoid a result in which form triumphs over substance.” Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 480 N.E.2d 1, 5 (Mass. 1985). In ruling on your motion, the court should, therefore, “examine the degree of [your] culpability,” along with the considerations expressly identified in Rule 36, namely, “the prejudice resulting to [your adversary], and whether relief will advance presentation of the case on the merits and otherwise promote effective justice.” See Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 480 N.E.2d at 6. In assessing the degree of the moving party’s culpability in failing to provide timely responses, federal courts have considered, among other factors, the length of time that passed before the moving party provided its answers and objections and the reasons for the delay. The Rhode Island Supreme Court did engage in such an analysis in the Cardi decision. Also, in Kelly v. K&H Realty Trust, 717 A.2d 646 (R.I. 1998), the court would not allow a party to withdraw and amend its response when there was a four-month time lapse, and there was no indication that the failure to answer was due to excusable neglect. See also Nguyen v. CNA Corp., 44 F.3d 234, 242–43 (4th Cir. 1995) (trial court did not abuse its discretion by permitting a response served one day after the deadline where delay was due to a snowstorm); Novopharm, Ltd. v. Torpharm, Inc., 181 F.R.D. 308, 310 (E.D.N.C. 1998) (court granted unopposed motion to withdraw admissions where responses were twelve days late and moving party established that delay had resulted from a docketing error); see also Farr Man & Co. v. M/V Rozita, 903 F.2d 871, 876–77 (1st Cir. 1990) (admission based on inaccurate information received by opposing party); Reyes v. Vantage S.S. Co., 672 F.2d 556, 557–58 (5th Cir. 1982) (admissions based on misconstruction of underlying request). In Rhode Island, in the General Electric case, a delay of two years before attempting to withdraw admitted facts was considered prejudicial and too long; thus the admissions remained admitted. Gen. Elec. Co. v. Paul Forsell & Son, Inc., 394 A.2d 1101 (R.I. 1978). Generally, a showing of excusable neglect by the moving party will not satisfy this burden. Simien v. Chem. Waste Mgmt., Inc., 30 F. Supp. 2d 939, 941 (W.D. La. 1998), aff’d, 174 F.3d 199 (5th Cir. 1999). Courts generally consider “whether the admission is contrary to the record of the case.” Simien v. Chem. Waste Mgmt., Inc., 30 F. Supp. 2d at 942 (citation omitted). In determining whether the proposed relief would be prejudicial, courts focus on whether the party that served the requests has relied on the admissions to its detriment in preparing its case. Thus, the opposing party’s arguments in regard to prejudice usually grow stronger as trial approaches. The Massachusetts Supreme Judicial Court has explained:

20–21

§ 20.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The prejudice contemplated by the Rule is not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence with respect to the questions previously answered by the admission. Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 480 N.E.2d 1, 5 n.9 (Mass. 1985) (quoting Brook Vill. N. Assocs. v. Gen. Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982)).

(b)

Heightened Standard for Admissions Included in Pretrial Order

Rule 36(b) states that requests to modify admissions that have been incorporated in a pretrial order are governed by Super. R. Civ. P. 16. Rule 16 imposes a higher standard for modification than that set forth in Rule 36. Specifically, Rule 16 provides that a pretrial order may be modified only “to prevent manifest injustice.” Applying this standard in a case in which a party neither responded to requests to admit critical facts nor moved to withdraw the default admissions, the Fifth Circuit stated that “[t]he fact that the party found more credible by the district court may lose a suit because of its patent disregard of procedural rules . . . does not rise to the level of manifest injustice.” Am. Auto. Ass’n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1121 (5th Cir. 1991). According to the First Circuit, however, a court “might” permit withdrawal or amendment of admissions after the commencement of trial if • “no rational fact finder could believe the facts established by the admissions to be true,” and • the party that elicited the admissions “is not otherwise prejudiced.” Brook Vill. N. Assocs. v. Gen. Elec. Co., 686 F.2d 66, 73 (1st Cir. 1982). This is obviously a very high hurdle.

(c)

Standard of Review

Appellate courts review decisions on motions to withdraw or amend issued pursuant to Rule 36(b) under an “abuse of discretion” standard. Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 480 N.E.2d 1, 6 (Mass. 1985). The trial court judge must explain on the record the grounds for his or her decision to allow relief 20–22

REQUESTS FOR ADMISSIONS

§ 20.5

from Rule 36 admissions. In the absence of a recorded opinion setting forth the basis for the order, the decision will not withstand appeal. Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 480 N.E.2d at 6.

§ 20.6

USING ADMISSIONS TO WIN YOUR CASE

§ 20.6.1 Using Admissions to Obtain Summary Judgment You are entitled to summary judgment if “the admissions on file,” together with the other evidence, “show that there is no genuine issue as to any material fact and that [you are] entitled to a judgment as a matter of law.” Super. R. Civ. P. 56(c). Accordingly, admissions may provide a sufficient basis for summary judgment. Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 480 N.E.2d 1, 4 (Mass. 1985) (citations omitted); James W. Smith & Hiller B. Zobel, Rules Practice (7 Massachusetts Practice Series) § 36.9.2 (West 1975 & Supp. 2002). You must file admissions with the court before you can rely on them in a motion for summary judgment. Remember, now admissions and their answers are typically not in the court’s file before you attempt to rely upon them, so you need to attach a copy to your moving papers. When ruling on your motion for summary judgment, the court may consider the following factors: • whether the admissions are uncertain, vague, or ambiguous; • whether you would be prejudiced by withdrawal or amendment of the admissions; and • with respect to default admissions, whether the requests were properly served. James W. Moore et al., 7 Moore’s Federal Practice § 36.03[4] (Matthew Bender 3d ed. 1997). Practice Note In a case against multiple adversaries, always be mindful that an admission “does not affect any party other than the one making it.” Carlson v. Withers, 449 N.E.2d 1243, 1245 (Mass. App. Ct.) (citation omitted), review denied, 452 N.E.2d 1158 (Mass. 1983). In building your record for summary judgment or trial, make sure you establish an evidentiary foundation that enables you to use any key admission

20–23

§ 20.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

by an adverse party against every other adverse party to which it is relevant. Potential means to accomplish this objective include service of an identical request on the other adverse parties and use of admissions or other forms of discovery to establish that the other adverse parties have no first-hand knowledge regarding the admitted matter and are not aware of any potentially admissible evidence to contradict the admission.

Practice Note You cannot rely on admissions in support of a motion to dismiss for failure to state a claim, because such a motion is limited to the pleadings. Moore, 7 Moore’s Federal Practice § 36.03[4].

§ 20.6.2 Using Admissions at Trial If you intend to rely on an admission at trial, you must read it into the record prior to the close of evidence. See S. Kemble Fischer Realty Trust v. Bd. of Appeals of Concord, 402 N.E.2d 100, 102 (Mass. App. Ct.) (declining to consider admissions that were not part of the record), cert. denied, 449 U.S. 1011 (1980). Some judges will simply instruct the jury that certain matters have been deemed “admitted” by the parties. In your opening and closing statements, it is both dramatic and unquestionably accurate to emphasize, for example, that “the defendant has admitted that her blood alcohol content exceeded the legal limit on the night of September 1, 2000.” In addition, you should request that the court instruct the jury that all of your adversary’s admissions are conclusively established and cannot be rebutted. However, an admitting party retains all of the possible objections to evidence, including that the “admitted” material is irrelevant. Cannone v. New Eng. Tel. & Tel. Co., 471 A.2d 211, 214 (R.I. 1984).

§ 20.6.3 Using Default Admissions In order to rely on a default admission, you must establish that • the request was properly served, and • your adversary failed to respond. James W. Moore et al., 7 Moore’s Federal Practice § 36.03[1] (Matthew Bender 3d ed. 1997).

20–24

REQUESTS FOR ADMISSIONS

§ 20.6

§ 20.6.4 Using Admissions in Other Proceedings “Any admission made by a party under [Rule 36] is for the purpose of the pending action only and is not an admission by the party for any other purpose nor may it be used against the party in any other proceeding . . . .” Super. R. Civ. P. 36(b). The Seventh Circuit has gone so far as to hold that a judgment based solely on admissions cannot be used to preclude litigation of a factual question in a later proceeding. In re Cassidy, 892 F.2d 637, 640 n.1 (7th Cir.), cert. denied, 498 U.S. 812 (1990). There is an exception to this Rule, and that is if the subsequent action is between the same parties and for the same claim. Super. R. Civ. P. 36(b).

§ 20.6.5 Prohibition on Introduction of Denials into Evidence In Massachusetts, the Supreme Judicial Court has observed that Rule 36 “does not specifically provide for the admission of denials in evidence,” and that “[a]lthough the rule states that admissions are conclusively binding on the responding party, it makes no parallel provision for the use of a denial.” Gutierrez v. Mass. Bay Transp. Auth., 772 N.E.2d 552, 567 (Mass. 2002). Based on these omissions, the Supreme Judicial Court has concluded that “although admissions have binding effect, denials do not have such an effect and cannot be introduced in evidence.” Gutierrez v. Mass. Bay Transp. Auth., 772 N.E.2d at 567.

§ 20.7

SANCTIONS FOR FAILURE TO ADMIT

If your adversary refuses to admit a fact and you prove the truth of that fact at trial, you may be able to recover the expenses that your adversary’s refusal caused you to incur. Specifically, the court must order your adversary to pay your reasonable expenses—including your attorney fees—unless it finds one of the following: • the request was previously held to have been objectionable, • the admission was “of no substantial importance,” • your adversary “had reasonable grounds to believe that he might prevail on the matter,” or • there was “other good reason” for your adversary’s refusal to admit.

20–25

§ 20.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Super. R. Civ. P. 37(c). The District Court rule has a similar, but notably less complex, list of exceptions. Rule 37(c) of the Rhode Island Superior Court Rules of Civil Procedure states that if a party denied the genuineness of any document or the truth of any matter as requested under Rule 36, then the proving party may apply for a court order requiring the other party to pay for the expenses of proving, including a reasonable attorney fees. In this context, the federal courts have applied a subjective standard to the answering party’s conduct and, further, have held that an award of attorney fees should not be made when an objection was made to the request for admission but no motion to test the validity of the objection was filed. Russo v. Baxter Healthcare Corp., 51 F. Supp. 2d 70 (D.R.I. 1999). Appellate courts review rulings on sanctions for abuse of discretion. See Campana v. Bd. of Dirs. of Mass. Hous. Fin. Agency, 505 N.E.2d 510, 517 (Mass. 1987).

§ 20.8

CONCLUSION

If used properly, carefully drafted requests can help you achieve dramatic results while avoiding considerable expense for your clients. If you fail to respond adequately to requests, you risk losing cases that you should have won, while exposing your clients to substantial sanctions and yourself to malpractice liability. For these reasons, you should not underestimate either the power or the danger of Rule 36.

20–26

CHAPTER 21

Obtaining Medical Records Gil A. Bianchi, Jr. § 21.1

HIPAA ................................................................................. 21–1

§ 21.2

Rhode Island Confidentiality of Health Care Communications and Information Act............................. 21–2

§ 21.3

Obtaining Your Client’s Medical Records ....................... 21–3 § 21.3.1

Consent Forms .................................................... 21–3

§ 21.3.2

The Cost of Obtaining Your Client’s Medical Records.................................................. 21–4

§ 21.4

Opposing Counsel Wants All of Your Client’s Medical Records Regardless of Scope or Time Periods................ 21–5

§ 21.5

Subpoenaing Medical Records.......................................... 21–7

§ 21.6

Motions to Quash ............................................................... 21–9

§ 21.7

Conclusion......................................................................... 21–10

EXHIBIT 21A—R.I. Gen. Laws § 5-37.3-4 ...................................21–11 EXHIBIT 21B—Sample Authorization for Use of Protected Health-Care Information ............................................................... 21–17

21–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

21–ii

CHAPTER 21

Obtaining Medical Records Gil A. Bianchi, Jr.

Scope Note The purpose of this chapter is to discuss obtaining a person’s medical records. The chapter begins with the easiest and most direct manner of obtaining another person’s medical records; that is, obtaining your client’s medical records. Then, the discussion shifts to the various manners of obtaining a party or a nonparty’s records through discovery and by way of subpoena. Since the Rhode Island Confidentiality of Health Care Communications and Information Act and HIPAA apply in all of the above-mentioned scenarios, a look at the state and federal statutes and their implications is included as well.

§ 21.1

HIPAA

In 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPAA). While the primary purpose of HIPAA was to permit employees to maintain health insurance if they obtained new employment, the act also included provisions for the transmission of medical records electronically. Recognizing that medical records would be transmitted by way of computer systems, Congress included a requirement for privacy regulations. The purpose of the regulations was to protect the dissemination and transmission of confidential individual health-care information. For the practitioner, the practical implication of HIPAA is that all medical providers are required to obtain from the requesting attorney a properly executed authorization before permitting the release and dissemination of that individual’s medical records and/or bills. The applicability of HIPAA will depend on whether you are requesting another person’s medical records presuit or during the pendency of litigation. The applicability of HIPAA will depend on the particular context. Assuming that the practitioner is seeking his or her own client’s medical records before the initiation of a lawsuit, HIPAA applies. The requesting attorney must provide the medical provider with an authorization executed by his or her client that permits the release of the client’s medical records to the client’s attorney. 21–1

§ 21.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Once litigation has commenced, HIPAA does not outright prohibit the dissemination of a litigant’s medical records. In fact, HIPAA specifically allows for the disclosure of a person’s health-care information pursuant to court order. However, HIPAA is not the final word on the availability of another person’s medical records. The practitioner must then inquire if a more stringent state requirement controls. HIPAA specifically provides that the states are free to pass “more stringent” legislation. If a state has passed a more stringent statute, then state law is not preempted by HIPAA and state law will apply. 45 C.F.R. §§ 160.202, 160.203. Rhode Island has passed a statute that is more stringent than HIPAA. Thus, HIPAA does not preempt Rhode Island law.

§ 21.2

RHODE ISLAND CONFIDENTIALITY OF HEALTH CARE COMMUNICATIONS AND INFORMATION ACT

For its part, Rhode Island has enacted its own statute governing the dissemination of patient information. The stated purpose of the Rhode Island Confidentiality of Health Care Communications and Information Act (Confidentiality Act), R.I. Gen. Laws § 5-37.3-1, et seq., is to “establish safeguards for maintaining the integrity of confidential health care information that relates to an individual.” R.I. Gen. Laws § 5-37.3-2. Whereas HIPAA’s privacy requirements flow as corollary to HIPAA’s stated purpose of ensuring the seamless continuation of an employee’s health insurance, the Rhode Island Confidentiality Act explicitly and intentionally endeavors to place limitations on the disclosure of a patient’s medical records. Rhode Island General Laws § 5-37.3-2 specifically states that a “patient’s confidential health care information shall not be released or transferred without the written consent of the patient or his or her authorized representative, on a consent form meeting the requirements of subsection (d) of this section.” R.I. Gen. Laws § 5-37.3-2(a)(1). The Confidentiality Act defines “confidential health care information” as “all information relating to a patient’s health-care history, diagnosis, condition, treatment, or evaluation obtained from a health care provider who has treated the patient.” R.I. Gen. Laws § 5-37.3-3(3)(ii). The Confidentiality Act then sets forth twenty-four instances where patient consent is not necessary to permit disclosure (see Exhibit 21A for the full text of the exceptions). Thus under R.I. Gen. Laws § 5-37.3-4, the release of a patient’s confidential health-care information pursuant to any one of the twenty-four enumerated exceptions will not give rise to civil or criminal liability.

21–2

OBTAINING MEDICAL RECORDS

§ 21.3

§ 21.3

OBTAINING YOUR CLIENT’S MEDICAL RECORDS

§ 21.3.1 Consent Forms In order to obtain your client’s medical records, you will need to have your client execute a Confidentiality Act– and HIPAA-compliant authorization. All healthcare providers will require such an authorization before disseminating or providing you with your client’s health-care information. Health-care providers routinely require authorizations that specifically identify all the possible areas of medical treatment that are subject to your request. The Confidentiality Act provides a roadmap for any attorney seeking to obtain another person’s medical records. First, you must draft a consent form permitting the release of your client’s confidential health information, and you must obtain your client’s signature to the consent form. Buried deep within R.I. Gen. Laws § 5-37.3-4 lie the requirements for obtaining your client’s medical records. Subsection (d) of § 5-37.3-4 states that the consent form must contain: (1) A statement of the need for and proposed uses of that information; (2) A statement that all information is to be released or clearly indicating the extent of the information to be released; and (3) A statement that the consent for release or transfer of information may be withdrawn at any future time and is subject to revocation, except where an authorization is executed in connection with an application for a life or health insurance policy in which case the authorization expires two (2) years from the issue date of the insurance policy, and when signed in connection with a claim for benefits under any insurance policy the authorization shall be valid during the pendency of that claim. Any revocation shall be transmitted in writing. R.I. Gen. Laws § 5-37.3-4(d). Some health-care providers will insist upon using their own authorizations. (A sample authorization from an area hospital is attached as Exhibit 21B.) Unfortunately, even if you send a provider your own authorization, the provider will 21–3

§ 21.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

insist that you send a copy of that provider’s authorization. Regardless of the authorization utilized, it is necessary that your authorization contain language whereby the patient consents to the disclosure of information concerning • mental health, • alcohol and/or drug use, • sexual abuse, • venereal disease, and • AIDS or HIV test results. For a sample authorization addressing these concerns, see Exhibit 21B. Once you have had your client sign a compliant authorization/consent form, you will need to draft a cover letter to the particular medical provider detailing the scope of your request. The cover letter should identify the following: • your client’s name; • your client’s date of birth; • your client’s treatment dates (if known); and • whether you are requesting medical records or billing statements, or both. If you are requesting your client’s medical records and billing statements from the same medical provider, then it is advisable that you send your requests for records and bills under separate cover. For many health-care providers, different departments handle medical records requests and billing statement requests. Thus, in order to avoid unnecessary confusion and lost time, it is advisable that you send one request to the medical records department and another request to the billing department.

§ 21.3.2 The Cost of Obtaining Your Client’s Medical Records Typically, in response to receiving your request, medical providers will then send the requesting attorney an itemized bill for the medical records. The practitioner should be aware of Section 11.2 of the R.I. Department of Health Rules and Regulations for the Licensure and Discipline of Physicians, which specifically 21–4

OBTAINING MEDICAL RECORDS

§ 21.3

provides the amount a medical provider may charge a requesting attorney for medical records. Under the regulation, a medical provider may only charge an initial retrieval fee of $15.00 regardless of the amount of time necessary to retrieve the records. Thereafter, the medical provider may charge a rate not to exceed 25 cents per page for the first 100 pages. After the first 100 pages, the fee shall not exceed 10 cents per page. Occasionally, medical providers will need to be reminded of the regulation and its accompanying fee schedule. As a result, it is recommended that you keep a copy of the regulation handy or even attach a copy of the regulation with your initial records request. Frequently, health-care providers retain outside companies to handle attorney requests for medical records. Many of these third-party retrieval companies have recently begun offering to respond to your medical record request electronically. The retrieval companies require you to establish an account with them and, once such an account is established, the retrieval company will e-mail your client’s records directly to your office. This has resulted in quicker turnaround time on record requests and permits you to have the records already saved in your office computer network.

§ 21.4

OPPOSING COUNSEL WANTS ALL OF YOUR CLIENT’S MEDICAL RECORDS REGARDLESS OF SCOPE OR TIME PERIODS

It is abecedarian that an injured party places at least some of his or her medical condition at issue with the filing of a complaint or counterclaim alleging the suffering of personal injury. However, the production of the patient/claimant’s medical records is still controlled by the applicable rules of civil procedure and the Confidentiality Act. At this juncture and in a suit where the patient has filed a negligence action alleging personal injury, the patient’s protections under the Confidentiality Act will cede to the rulings of the court system. The question then becomes, how much of his or her medical history will a claimant be required to disclose during the course of litigation? The test is whether the information sought is likely to lead to the discovery of admissible, that is, relevant evidence. In determining relevancy, a good place to start is with the medical records related to the incident giving rise to the claim. Almost always, the medical records that document the alleged injuries are discoverable. The next issue usually then becomes are any of the claimant’s prior records discoverable? Again, the test is relevancy. The disclosure of records concerning treatment for similar symptoms as those alleged in the civil suit are often agreed upon by attorneys and the court for time periods ranging from three to 21–5

§ 21.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

five years prior to the injury. The disclosure of such records is generally permitted based on the theory that if the claimant was treated for similar symptoms prior to the accident, then the opposing party should be permitted access to those records in order to assess the causal connection between the injuries and the alleged negligence. If, after the initial production of these documents, there is a patient history that exceeds three to five years, the court may permit the discovery of medical records for similar symptoms to the injury complained of. However, the requesting party may not necessarily obtain all of the plaintiff’s prior medical records as a matter of right. The test still remains relevancy. Only those records that bear a relation to the same symptoms that have given rise to the lawsuit will normally be permitted. By way of example, if a forty-year-old woman with a ten-year history of prior back treatment files suit alleging injury to her back arising from a motor vehicle collision, the court may well permit the production of the previous ten years of treatment with her orthopedic physician for back pain. On the other hand, if the woman also treated with a gynecologist or other specialist during those same ten years, the court would probably not order the production of those records if they do not contain references to back pain or back ailments. Absent a history of back complaints in such records, it would seem that the records would not contain information relevant to the current claim of back injury from the motor vehicle collision. Similarly, the records of the woman’s primary care physician may not be discoverable unless they contain arguable relevant information. Regarding your client’s prior medical records, some opposing counsel may seek through discovery medical records for ten years before the incident complained of, and others may seek any and all of your client’s medical records without constraining themselves to a particular time period. You can and should object to such a broad time frame if the information contained in those medical records is not relevant. If you and opposing counsel are unable to reach an agreement on the breadth of the disclosure of your client’s medical records, then the dispute may be brought before the motion justice pursuant to a motion to compel document production. Depending on the circumstances of the case, a motion justice may reject such a broad time frame as burdensome or unlikely to lead to the discovery of admissible evidence and may limit discovery of your client’s medical records to a shorter time period. However, should such records contain relevant information concerning similar symptoms or a condition or treatment for a condition that your client asserts was caused by or exacerbated by the opposing party’s negligence, for example, then the court may permit discovery of such records in excess over a broader period of time. Based on this author’s experience, the extent to which the court permits the discovery of a claimant’s confidential medical records is dependent on the circumstances of each case. In one instance the motion justice would not permit discovery 21–6

OBTAINING MEDICAL RECORDS

§ 21.4

of records concerning a prior back injury which predated the date of the incident by twenty-six years. By the same token, the court has been known to order the discovery of medical records containing treatment for a similar condition, once the antecedent foundation has been laid, for ten years prior to the incident complained of. The test remains relevancy. The requesting attorney still must demonstrate how the records sought are relevant to the instant litigation. Practice Note Paragraph (b)(8) of R.I. Gen. Laws § 5-37.3-4 initially discusses the permitted disclosure of confidential health-care information to a health-care provider’s own lawyer or medical liability insurance carrier if the patient has brought a medical malpractice action against the health-care provider. Section (ii) of paragraph (b)(8) then provides an interesting fulcrum, expressly stating that [d]isclosure by a health care provider of a patient’s health care information which is relevant to a civil action brought by the patient against any person or persons other than that health care provider may occur only under the discovery methods provided by the applicable rules of civil procedure (federal or state). R.I. Gen. Laws § 5-37.3-4(b)(8)(ii).

§ 21.5

SUBPOENAING MEDICAL RECORDS

You may want to subpoena another party or a nonparty’s medical records. General Laws § 5-37.3-6.1 of the Confidentiality Act permits the disclosure of confidential health-care information by way of a subpoena in a judicial proceeding, with the following caveats. The subpoenaing party must certify to the provider or custodian of records that: (1) A copy of the subpoena has been served by the party on the individual whose records are being sought on or before the date the subpoena was served, together with a notice of the individual’s right to challenge the subpoena; or, if the individual cannot be located within this jurisdiction, that an affidavit of that fact is provided; and (2) Twenty (20) days have passed from the date of service on the individual and within that time period the individual has not initiated a challenge; or 21–7

§ 21.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

(3) Disclosure is ordered by a court after challenge. R.I. Gen. Laws § 5-37.3-6.1. Thus, the Confidentiality Act requires that you first serve the opposing party’s attorney (or if the individual is not represented by counsel, then the individual himself or herself) with notice of your intent to subpoena the medical records. In your notice, you are obligated under the Confidentiality Act to inform the party of their right to challenge the subpoena within twenty days of service. During which time, the individual may retain counsel and file an objection with the court seeking to preclude or limit the scope of production. Normally, a party would challenge the subpoena by filing a motion for a protective order and/or a motion to quash. You then must wait twenty days before issuing the subpoena, if and only if, the individual or party has not challenged the subpoena. If the twenty days have elapsed and you have not received a challenge from the individual or his or her counsel, then the subpoena may issue along with your written certification that you have not received notice of a challenge or objection. If you do not already have a copy of your client’s records that are subject to the instant subpoena, it is recommended that you obtain and/or review the records that are subject to the subpoena. The concern here is that when you file a motion to quash with the court seeking to quash the subject subpoena, the court may well inquire of you the basis for your objection and whether you have reviewed the records that are the subject of the subpoena. It may become difficult for the objecting attorney to articulate the basis of his or her objection if that attorney has not reviewed the subject records. This author recommends that the objecting attorney contact the subpoenaing attorney and reach an agreement establishing a mechanism for the objecting attorney to review the subject records before a potentially awkward court hearing regarding the scope and unknown content of the records. The following mechanism was recommended by a colleague and its utility should be readily apparent. First, you contact opposing counsel and agree to permit the subpoena to issue. Upon receipt of the records, opposing counsel would keep the subject responsive records sealed until an agreed upon time when both attorneys can meet. Then the objecting attorney can meet at the opposing attorney’s office and review the records. If the subpoenaed records do not contain objectionable material, then the opposing attorney need not file a motion to quash with the court. On the other hand, if the subpoenaed documents do contain objectionable material (e.g., overly broad in scope, potentially embarrassing information which violates your client’s privacy rights), then opposing counsel, when presenting arguments during the motion to quash, can articulate with confidence the basis of his or her objections as he or she has reviewed the records personally before filing a motion to quash with the court.

21–8

OBTAINING MEDICAL RECORDS

§ 21.6

§ 21.6

MOTIONS TO QUASH

Clients have typically lived long and complicated lives before they walk into your office and seek your counsel. Their history is likely to include medical or psychological treatment completely unrelated to the incident that is the subject of the instant litigation. Instances that readily come to mind include clients who have participated in psychological counseling for sexual abuse or physical abuse or who have undergone medical treatment for some highly personal or sensitive condition. In circumstances such as these, the practitioner should file a motion to quash with the court. General Laws § 5-37.3-6.1(b) limits the procedure for initiating such a challenge. First, the motion to quash must be filed in the court where the action is pending within twenty days after the service of the subpoena. Second, the moving party must serve a copy of the motion to quash upon the party issuing the subpoena. The issuing party is then afforded the opportunity to file papers in support of its subpoena, and the moving party may file reply papers. When filing such a motion, the moving party should already have in his or her possession the objected-to records. The moving party can then request an in camera review by the motion justice. Usually, the motion justice will review the subject records in camera and may convene a chambers conference with the attorneys to discuss the motion. The practitioner should be prepared to field questions from the motion justice regarding the records. The motion justice will then go on the record and issue his or her decision regarding the motion to quash. The Confidentiality Act states that the court shall grant a motion to quash unless the requesting party can demonstrate that there is reasonable ground to believe the information being sought is relevant to the proceedings, and the need for the information clearly outweighs the privacy interest of the individual. R.I. Gen. Laws § 5-37.3-6.1(d). In determining whether the need for information clearly outweighs the privacy of the individual, the court shall consider • the particular purpose for which the information was collected; • the individual’s reasonable expectation of privacy in the information; • the degree to which disclosure of the information would embarrass, injure, or invade the privacy of the individual; • the effect of the disclosure on the individual’s future health care; • the importance of the information to the lawsuit or proceeding; and 21–9

§ 21.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• whether the information is available from another source, including Rule 35 of the Superior Court Rules of Civil Procedure. If the court grants the motion to quash, then you have prevailed and your client will not be ordered to produce the sensitive material. If the court denies your motion to quash, then your client will be ordered to produce the subject medical records. In the alternative of quashing the entire subpoena, the court may order a protective order limiting or curtailing the extent to which the medical records can be used. Occasionally, protective orders may include language limiting the disclosure of the records to certain entities and persons. Protective orders may also contain language requiring that the records be destroyed by all parties involved at the conclusion of the court action.

§ 21.7

CONCLUSION

Attorneys handling personal injury cases do not have unfettered access to the medical records of nonparties, adverse parties, or even those of their own clients. They are limited by the requirements of HIPAA and the Rhode Island Confidentiality of Health Care Communications and Information Act. However, these obstacles are not insurmountable and should not preclude a party from properly preparing a case for trial.

21–10

OBTAINING MEDICAL RECORDS

EXHIBIT 21A—R.I. Gen. Laws § 5-37.3-4 § 5-37.3-4. Limitations on and permitted disclosures (a) (1) Except as provided in subsection (b) of this section or as specifically provided by the law, a patient’s confidential health care information shall not be released or transferred without the written consent of the patient or his or her authorized representative, on a consent form meeting the requirements of subsection (d) of this section. A copy of any notice used pursuant to subsection (d) of this section, and of any signed consent shall, upon request, be provided to the patient prior to his or her signing a consent form. Any and all managed care entities and managed care contractors writing policies in the state shall be prohibited from providing any information related to enrollees which is personal in nature and could reasonably lead to identification of an individual and is not essential for the compilation of statistical data related to enrollees, to any international, national, regional, or local medical information data base. This provision shall not restrict or prohibit the transfer of information to the department of health to carry out its statutory duties and responsibilities. (2) Any person who violates the provisions of this section may be liable for actual and punitive damages. (3) The court may award a reasonable attorney’s fee at its discretion to the prevailing party in any civil action under this section. (4) Any person who knowingly and intentionally violates the provisions of this section shall, upon conviction, be fined not more than five thousand ($5,000) dollars for each violation, or imprisoned not more than six (6) months for each violation, or both. (5) Any contract or agreement which purports to waive the provisions of this section shall be declared null and void as against public policy. (b) No consent for release or transfer of confidential health care information shall be required in the following situations: (1) To a physician, dentist, or other medical personnel who believes, in good faith, that the information is necessary for diagnosis or treatment of that individual in a medical or dental emergency;

21–11

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

(2) To medical and dental peer review boards, or the board of medical licensure and discipline, or board of examiners in dentistry; (3) To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, program evaluations, actuarial, insurance underwriting, or similar studies; provided, that personnel shall not identify, directly or indirectly, any individual patient in any report of that research, audit, or evaluation, or otherwise disclose patient identities in any manner; (4) By a health care provider to appropriate law enforcement personnel, or to a person if the health care provider believes that person or his or her family is in danger from a patient; or to appropriate law enforcement personnel if the patient has or is attempting to obtain narcotic drugs from the health care provider illegally; or to appropriate law enforcement personnel or appropriate child protective agencies if the patient is a minor child who the health care provider believes, after providing health care services to the patient, to have been physically or psychologically abused; or to law enforcement personnel in the case of a gunshot wound reportable under § 11-47-48; (5) Between or among qualified personnel and health care providers within the health care system for purposes of coordination of health care services given to the patient and for purposes of education and training within the same health care facility; or (6) To third party health insurers including to utilization review agents as provided by § 23-17.12-9(c)(4), third party administrators licensed pursuant to chapter 20.7 of title 27 and other entities that provide operational support to adjudicate health insurance claims or administer health benefits; (7) To a malpractice insurance carrier or lawyer if the health care provider has reason to anticipate a medical liability action; or (8) (i) To the health care provider’s own lawyer or medical liability insurance carrier if the patient whose information is at issue brings a medical liability action against a health care provider. (ii) Disclosure by a health care provider of a patient’s health care information which is relevant to a civil action brought by the patient against any person or persons other than that health care provider may occur only under the discovery methods provided by the applicable rules of civil procedure (federal or state). This disclosure 21–12

OBTAINING MEDICAL RECORDS

shall not be through ex parte contacts and not through informal ex parte contacts with the provider by persons other than the patient or his or her legal representative. Nothing in this section shall limit the right of a patient or his or her attorney to consult with that patient’s own physician and to obtain that patient’s own health care information; (9) To public health authorities in order to carry out their functions as described in this title and titles 21 and 23, and rules promulgated under those titles. These functions include, but are not restricted to, investigations into the causes of disease, the control of public health hazards, enforcement of sanitary laws, investigation of reportable diseases, certification and licensure of health professionals and facilities, review of health care such as that required by the federal government and other governmental agencies; (10) To the state medical examiner in the event of a fatality that comes under his or her jurisdiction; (11) In relation to information that is directly related to current claim for workers’ compensation benefits or to any proceeding before the workers’ compensation commission or before any court proceeding relating to workers’ compensation; (12) To the attorneys for a health care provider whenever that provider considers that release of information to be necessary in order to receive adequate legal representation; (13) By a health care provider to appropriate school authorities of disease, health screening and/or immunization information required by the school; or when a school age child transfers from one school or school district to another school or school district; (14) To a law enforcement authority to protect the legal interest of an insurance institution, agent, or insurance-support organization in preventing and prosecuting the perpetration of fraud upon them; (15) To a grand jury or to a court of competent jurisdiction pursuant to a subpoena or subpoena duces tecum when that information is required for the investigation or prosecution of criminal wrongdoing by a health care provider relating to his or her or its provisions of health care services and that information is unavailable from any other source; provided, that any information so obtained is not admissible in any criminal proceeding against the patient to whom that information pertains; 21–13

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

(16) To the state board of elections pursuant to a subpoena or subpoena duces tecum when that information is required to determine the eligibility of a person to vote by mail ballot and/or the legitimacy of a certification by a physician attesting to a voter’s illness or disability; (17) To certify, pursuant to chapter 20 of title 17, the nature and permanency of a person’s illness or disability, the date when that person was last examined and that it would be an undue hardship for the person to vote at the polls so that the person may obtain a mail ballot; (18) To the central cancer registry; (19) To the Medicaid fraud control unit of the attorney general’s office for the investigation or prosecution of criminal or civil wrongdoing by a health care provider relating to his or her or its provision of health care services to then Medicaid eligible recipients or patients, residents, or former patients or residents of long term residential care facilities; provided, that any information obtained shall not be admissible in any criminal proceeding against the patient to whom that information pertains; (20) To the state department of children, youth, and families pertaining to the disclosure of health care records of children in the custody of the department; (21) To the foster parent or parents pertaining to the disclosure of health care records of children in the custody of the foster parent or parents; provided, that the foster parent or parents receive appropriate training and have ongoing availability of supervisory assistance in the use of sensitive information that may be the source of distress to these children; (22) A hospital may release the fact of a patient’s admission and a general description of a patient’s condition to persons representing themselves as relatives or friends of the patient or as a representative of the news media. The access to confidential health care information to persons in accredited educational programs under appropriate provider supervision shall not be deemed subject to release or transfer of that information under subsection (a) of this section; or (23) To the workers’ compensation fraud prevention unit for purposes of investigation under §§ 42-16.1-12–42-16.1-16. The release or transfer of confidential health care information under any of the above exceptions

21–14

OBTAINING MEDICAL RECORDS

is not the basis for any legal liability, civil or criminal, nor considered a violation of this chapter; or (24) To a probate court of competent jurisdiction, petitioner, respondent, and/or their attorneys, when the information is contained within a decision-making assessment tool which conforms to the provisions of § 3315-47. (c) Third parties receiving and retaining a patient’s confidential health care information must establish at least the following security procedures: (1) Limit authorized access to personally identifiable confidential health care information to persons having a “need to know” that information; additional employees or agents may have access to that information which does not contain information from which an individual can be identified; (2) Identify an individual or individuals who have responsibility for maintaining security procedures for confidential health care information; (3) Provide a written statement to each employee or agent as to the necessity of maintaining the security and confidentiality of confidential health care information, and of the penalties provided for in this chapter for the unauthorized release, use, or disclosure of this information. The receipt of that statement shall be acknowledged by the employee or agent, who signs and returns the statement to his or her employer or principal, who retains the signed original. The employee or agent shall be furnished with a copy of the signed statement; (4) Take no disciplinary or punitive action against any employee or agent solely for bringing evidence of violation of this chapter to the attention of any person. (d) Consent forms for the release or transfer of confidential health care information shall contain, or in the course of an application or claim for insurance be accompanied by a notice containing, the following information in a clear and conspicuous manner: (1) A statement of the need for and proposed uses of that information; (2) A statement that all information is to be released or clearly indicating the extent of the information to be released; and (3) A statement that the consent for release or transfer of information may be withdrawn at any future time and is subject to revocation, except 21–15

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

where an authorization is executed in connection with an application for a life or health insurance policy in which case the authorization expires two (2) years from the issue date of the insurance policy, and when signed in connection with a claim for benefits under any insurance policy the authorization shall be valid during the pendency of that claim. Any revocation shall be transmitted in writing. (e) Except as specifically provided by law, an individual’s confidential health care information shall not be given, sold, transferred, or in any way relayed to any other person not specified in the consent form or notice meeting the requirements of subsection (d) of this section without first obtaining the individual’s additional written consent on a form stating the need for the proposed new use of this information or the need for its transfer to another person. (f) Nothing contained in this chapter shall be construed to limit the permitted disclosure of confidential health care information and communications described in subsection (b) of this section.

21–16

OBTAINING MEDICAL RECORDS

EXHIBIT 21B—Sample Authorization for Use of Protected Health-Care Information AUTHORIZATION FOR USE OF PROTECTED HEALTH CARE INFORMATION Patient Name Phone Number Medical Record # (or SS#)

Date of Birth Address

1. I authorize Rhode Island Hospital to disclose my health information specific to the following date or time period:

2. Name & Address of individual or entity authorized to receive my health information: Name Street City/Town/State/Zip Code 3.

Purpose for which disclosure is to be made:

4.

Information to be disclosed (check all applicable):

Emergency Dept. Record

History & Physical Exam

Pathology Report

Laboratory Report

Entire Medical Record

Consultation

Discharge Summary

Radiology Report

Abstract

Operative Report

EKG

Other

21–17

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

5.

Please check one: I hereby:

____ Consent

_____ Refuse

to the release of confidential information concerning: Mental health, alcohol and/or drug use, sexual abuse, venereal disease, AIDS or HIV test results 6. I understand that my records are protected under the federal privacy laws and regulations and under the General laws of Rhode Island, and cannot be disclosed without my written consent except as otherwise specifically provided by law. 7. I understand that if the person(s) or entity(ies) that receive(s) this information is not a health care provider or health plan covered by federal regulations, the information described above may be re-disclosed and is no longer protected by those regulations. Therefore, I release _____________, its employees and my physicians from all liability arising from this disclosure of my health information. 8. It is my understanding that this authorization will expire 90 days from the date signed below. I understand that I may revoke this authorization by notifying ______________in writing. I understand that any previously disclosed information would not be subject to my revocation request. 9. I understand that I may refuse to sign this authorization and that my refusal to sign will not affect my ability to obtain treatment, payment, or my eligibility for benefits, unless otherwise described in the space provided here Signature of Patient or Patient’s Legal Representative

Print Patient’s Name Date

Print Name of Legal Representative (if applicable)

21–18

Relationship to Patient

CHAPTER 22

Attorney-Client Communications Privilege and the Work-Product Doctrine Donna M. Lamontagne § 22.1

Introduction ........................................................................ 22–1

§ 22.2

Scope of Attorney-Client Communications Privilege...... 22–2 § 22.2.1

Elements of Privilege .......................................... 22–2

§ 22.2.2

Burden of Proof................................................... 22–5

§ 22.2.3

Corporate or Organizational Client ..................... 22–7

§ 22.2.4

Nature of Communications ................................. 22–8

§ 22.2.5

Government Entities............................................ 22–9

§ 22.3

Third Parties and the Attorney-Client Privilege ............22–11

§ 22.4

Breach of the Privilege..................................................... 22–12

§ 22.5

Waiver of the Attorney-Client Privilege ......................... 22–13 § 22.5.1

Express Waiver.................................................. 22–13

§ 22.5.2

Implied or At Issue Waiver................................ 22–15

§ 22.5.3

Inadvertent Disclosure....................................... 22–17

§ 22.6

Effect of Asserting Attorney-Client Privilege ................ 22–18

§ 22.7

The Joint Defense Privilege ............................................. 22–19

§ 22.8

The Work-Product Doctrine............................................ 22–20

§ 22.9

Interplay Between Attorney-Client Communications Privilege and the Work-Product Doctrine...................... 22–23 22–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 22.10 Practical Considerations ..................................................22–24 § 22.10.1 When to Assert the Attorney-Client and Work-Product Privileges..............................22–24 § 22.10.2 What to Do When an Adverse Party Claims Attorney-Client Privilege or Work-Product Protection ...............................22–25

22–ii

CHAPTER 22

Attorney-Client Communications Privilege and the Work-Product Doctrine Donna M. Lamontagne

Scope Note This chapter presents an examination of the well-established legal principles of the attorney-client communications privilege and the attorney-client work-product doctrine. The discussion begins with an analysis of attorney-client communications privilege, comprising the elements required to claim the privilege, notable exceptions, and factors and instances that would constitute waiver of the privilege. The chapter then proceeds to review the work-product doctrine, including its evolution and the tests to determine whether documents fall within its umbrella. Finally, the chapter explores the interplay between the attorney-client communications privilege and the work-product doctrine, and offers an assessment as to when to invoke and how to respond to the privileges.

§ 22.1

INTRODUCTION

Attorney-client communications privilege is the oldest legal entitlement, which harkens back to the Roman Republic, but was strongly developed in Elizabethan England to become a cornerstone of Anglo-American jurisprudence. Rhode Island acknowledges this common law privilege of protecting the communications regarding legal services and advice between an attorney and a client from discovery. R.I. Rules of Evidence 501(3) advisory committee’s note. The privilege was created in order to “encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in observation of law and administration of justice.” Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d 156, 159 (R.I. 2000) (quoting Metro. Life v. Aetna Cas. & Sur. Co., 730 A.2d 51, 60 (Conn. 1999)). The attorney-client communications privilege has developed into a prominent and widely accepted legal doctrine that allows 22–1

§ 22.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

communications between attorneys and their respective clients to remain confidential from opposing parties during the legal process, including discovery and at trial. Under common law, the attorney-client privilege provides that “communications made by a client to his attorney for the purpose of seeking professional advice, as well as the responses by the attorney to such inquiries, are privileged communications not subject to disclosure.” Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d at 158–59 (quoting Callahan v. Nystedt, 641 A.2d 58, 61 (R.I. 1994)).

§ 22.2

SCOPE OF ATTORNEY-CLIENT COMMUNICATIONS PRIVILEGE

§ 22.2.1 Elements of Privilege Wigmore’s evidentiary treatise sets forth the widely accepted elements of the attorney-client communications privilege. This particular doctrinal definition received judicial affirmation in Rhode Island’s highly publicized Von Bulow murder trial. Its elements are offered below: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his/her capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived. State v. von Bulow, 475 A.2d 995, 1004 (R.I. 1984) (quoting John H. Wigmore, 8 Evidence in Trials at Common Law [Wigmore on Evidence] § 2292 at 554 (McNaughton rev. ed., Little, Brown 1961)). Rhode Island’s courts have consistently offered a strict analysis when faced with an exercise of this particular privilege, construing each element in the narrow meaning of the language. For instance, “the mere existence of a relationship between attorney and client, however, does not raise a presumption of confidentiality,” Pastore v. Samson, 900 A.2d 1067, 1084 (R.I. 2006), and not all communications are protected. Guided on the federal level by the U.S. Supreme Court, the attorney-client communications privilege does not extend to communications made to secure advice about the commission of a crime. United States v. Zolin, 491 U.S. 554, 563 (1989). The operation of the privilege is not absolute. State v. von Bulow, 475 A.2d at 1004. Because the privilege limits the full disclosure of

22–2

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.2

the truth, it must be narrowly construed. Gaumond v. Trinity Repertory Co., 909 A.2d 512, 516 (2006). Recognition of the privilege needs to be on a case-by-case basis. Upjohn Co. v. United States, 449 U.S. 383, 396 (1981). Rhode Island courts have adopted the analysis of the Fifth Circuit Court of Appeals as to the requisite factors in order to invoke the attorney-client communications privilege. To successfully claim attorney-client privilege, the following elements must be satisfied: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing, primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, but not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. State v. von Bulow, 475 A.2d at 1004–05 (quoting United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978)). When all elements, as set forth above, are present, the attorney-client communications privilege shields communications from the opposing parties in legal matters. Practice Note It is important to note that the attorney-client communications privilege is restricted to oral and written interactions between the attorney and client that were made with an ongoing expectation of confidentiality on behalf of both parties. Callahan v. Nystedt, 641 A.2d 58, 61 (R.I. 1994) (“The communication must be intended to be confidential when made.”).

Practice Note Pursuant to Rhode Island case law, only the client has standing to assert attorney-client privilege. Callahan v. Nystedt, 641 A.2d at 61. An attorney can assert the privilege on behalf of his or her client, but the courts have found circumstances in which this is not appropriate. Callahan v. Nystedt, 641 A.2d at 61. In Callahan, Nystedt, an attorney, refused to turn over case files to Callahan, a former employee and fellow attorney, claiming attorney-client privilege pursuant to Callahan’s

22–3

§ 22.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

discovery request for the files. Callahan v. Nystedt, 641 A.2d at 61. The court, however, found that by refusing to turn over the case files, Nystedt was not protecting the interests of his clients, but rather his own separate financial interests, and therefore the files were discoverable. Callahan v. Nystedt, 641 A.2d at 61.

Rhode Island courts subscribe to the standard established in Upjohn v. United States, 449 U.S. at 395, which recognized that, notwithstanding a valid exercise of the attorney-client privilege, it “only protects disclosure of communications; it does not protect the disclosure of underlying facts by those who communicated with the attorney.” Practice Note Pursuant to Rules 26(b)(1) and 30(c), an attorney is only permitted to instruct the deponent at deposition to refrain from responding to the questions if the answer would reveal privileged information. Kelvey v. Coughlin, 625 A.2d 775, 776 (R.I. 1993). Even in cases of a privilege objection, the deponent is permitted to answer questions as to the underlying circumstances, such as to how a report was prepared, the form of the report, who asked for the report, and what was asked. That inquiry is proper, even if the substance of the report is off limits. Kelvey v. Coughlin, 625 A.2d at 776 (quoting Bank of Am. v. Touche Ross & Co., 118 F.R.D. 550 (N.D. Ga. 1987)).

This privilege recently received a thorough review at the Superior Court level; a review that examined the burdens of its proper exercise and the pitfalls of its broad misuse. In the case of Langley v. Providence College, an in-house attorney for Providence College took various statements of students, staff, and college officials during the process of investigating the death of one of its students. Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009) (amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009)); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *3–5 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009). Providence College claimed that these interviews constituted attorney-client privileged communications. Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009) (amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009)); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *3–5 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009). After a thorough in camera review, the court observed

22–4

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.2

that, although the statements were taken by an attorney, there was no evidence that the communications were made to secure legal advice, no legal advice was given, and there was no evidence that the college students, staff, or officials requested confidentiality of the communications. Observing that the lawyers in the case were actually performing nonlawyer functions, the court determined that the privilege did not apply to the communications the college sought to protect. Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___(R.I. Super. Ct. July 1, 2009; Sept. 17, 2009). Clients should be mindful that they cannot claim facts are protected from discovery simply because they were communicated to an attorney. Upjohn v. United States, 449 U.S. at 396. Counsel must analyze the distinction between thoughts and facts and incorporate the lesson articulated in Langley that a broad assertion of the privilege will be examined closely and strictly construed so as not to obstruct the primary, truth-seeking function of the adversary process. Gaumond v. Trinity Repertory Co., 909 A.2d at 516–17; State v. von Bulow, 475 A.2d at 1006.

§ 22.2.2 Burden of Proof The party looking to prevent the disclosure of protected communications and information holds the burden of proving the existence of the attorney-client privilege. State v. von Bulow, 475 A.2d 995, 1005 (R.I. 1984). This burden requires that its attempted exercise must fulfill each and every judicially ascribed element. Pastore v. Samson, 900 A.2d 1067, 1084 (R.I. 2006) (“the burden of establishing these elements is on the party advancing the privilege”) (citation omitted). In Langley, Providence College carried the burden of demonstrating that the attorneys who communicated with staff and officials were acting in their capacity as legal advisors. The school’s attorney also needed to establish that the communications were made to generate legal advice. However, an in camera review of the communications revealed that the interviews recorded by counsel did not contain any suggestion of legal advice; rather, the communications betrayed an investigatory goal. “No privilege applies where the lawyer’s primary function is as a detective.” Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at *___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (quoting 22–5

§ 22.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Charles A. Wright et al., 24 Federal Practice and Procedure § 5478 at 229 (1986)). Consequently, the college did not meet its doctrinal burden of establishing a proper exercise of the privilege, and the communications were not protected from disclosure. Counsel must recognize the factual burden of a proper exercise of the attorney-client privilege and prepare the record for its exercise each time it is asserted. Ultimately, Langley should instruct practitioners that a loosely offered privilege assertion over a broad set of communications fails to protect communications between counsel and client. Practice Note The case of Waltz v. Exxon Mobil Corp., C.A. No. PC-02-2436, 2007 R.I. Super. LEXIS 7 (R.I. Super. Ct. Jan. 11, 2007) provides examples of documents that do not meet the bar in terms of being classified as attorney-client privileged or, in the event the communications were subsumed under the privilege, the privilege has been vitiated. The examples are, in pertinent part, the following: • documents that do not show on their face that an employee of the defendant had the authority to obtain or act on legal advice on behalf of the corporation; • memoranda between nonlawyer corporate employees that have been carbon copied or forwarded to legal counsel for screening purposes; • communications between counsel and the defendant’s employees that were shared with third parties or used in prior litigation; • handwritten notes that simply identify an attorney, but that do not contain confidential legal advice; and • communications where the dominant purpose of the memoranda is not to provide or obtain legal advice or assistance, but rather to provide business recommendations.

Thus, with respect to attorney-client communications between corporations and attorneys, the purpose of the communications must also involve legal advice. Waltz v. Exxon Mobil Corp., 2007 R.I. Super LEXIS 7, at *21. If the main reason behind the communication was to provide a corporate strategy or a business plan, that communication would not be privileged under the principle. Waltz v. Exxon Mobil Corp., 2007 R.I. Super. LEXIS 7, at *21–22. However, if the communications were to contain “both legal and non-legal advice, the burden is on the proponent of the privilege to establish that it was made for the purpose of obtaining legal advice.” Waltz v. Exxon Mobil Corp., 2007 R.I. Super. LEXIS 7, at *21–22 (citing United States v. Chevron Texaco Corp., 241 F. Supp. 2d 1065, 1076 (N.D. Cal. 2002)).

22–6

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.2

§ 22.2.3 Corporate or Organizational Client When analyzing attorney-client communications in the corporate context, courts have traditionally applied three different tests: • the control group test, • the subject matter test, and • the functional approach. Under the “control group” test, the communications between counsel and the corporate employee are privileged only if the employee making the communication is in a position to control or take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney or if he or she is an authorized member of a body or group that has that authority. This typically includes top management and any employee whose advice and/or expertise forms the basis for a decision. See Langley v. Providence College, analyzing this issue and citing City of Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 483, 485 (E.D. Pa. 1962). Courts began applying the “subject matter” test when they found that the “control group” test was too narrow and made it difficult for corporate counsel to communicate with mid- to lower-level employees who, by their actions and within the scope of their employment, could subject the corporation to significant liability. The “subject matter” test focuses on the nature of the communication, not the status of the communicator; casting a much broader net. An employee outside the “control group” can make a privileged communication to corporate counsel if it is made at the direction of his or her superiors and is about the performance of his or her job. Samaritan Found. v. Goodfarb, 862 P.2d 870, 875 (Ariz. 1993). The Providence Superior Court has applied the broader “subject matter” test derived from Upjohn v. United States, 449 U.S. 383, 390 (1981) to determine whether the communications between the individual employee and attorney were privileged. Waltz v. Exxon Mobil Corp., C.A. No. PC-02-2436, 2007 R.I. Super LEXIS 7, at *9 (R.I. Super. Ct. Jan. 11, 2007).

22–7

§ 22.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

[A]ttorneys and individual employees of a corporate client] may maintain a privilege only as to any communication where a corporate employee sought or acted upon legal advice concerning the duties of his or her employment. Any documents falling outside the scope of this privilege must be produced. Waltz v. Exxon Mobil Corp., 2007 R.I. Super. LEXIS 7, at *10 (citing In re Avantel, 343 F.3d 311, 315 (W.D. Tex. 2003)). Although the Waltz decision applied the “subject matter” test, the Rhode Island Superior Court appears mindful of the potential for an overly broad application of the “subject matter” test. Trying to balance the mandated strict construction of the privilege, and relying on the Arizona Supreme Court’s decision in Samaritan, the Langley court considered a return to the privilege’s core elements as the best practice and through its analysis, derived a “functional approach.” Therefore, the law appears to be moving in the direction that Rhode Island courts may hold that a corporation’s communications with its in-house counsel or outside counsel are privileged if and only if they were made for the purpose of obtaining legal advice regarding an issue within the scope of their employment and the employee would not need authority from the corporation prior to these communications to trigger the privilege.

§ 22.2.4 Nature of Communications As noted above, Rhode Island courts have held that only communications made for the purpose of securing primarily either an opinion on law, legal services, or assistance in some legal proceeding qualify under the attorney-client privilege. Rosati v. Kuzman, 660 A.2d 263, 265 (R.I. 1995). Thus, the substance and the drafter/recipient of the communication both carry significance in considering an appropriate exercise of privilege. As to the determination of whether the privilege exists pursuant to the substance of the communications, if the predominant purpose of the discourse is to provide business advice, analysis, or strategy, the communications would not fall under the protection of the attorney-client privilege. Waltz v. Exxon Mobil Corp., C.A. No. PC-02-2436, 2007 R.I. Super. LEXIS 7, at *13 (R.I. Super. Ct. Jan. 11, 2007). For example, in situations involving in-house and corporate attorneys, there will be discussions regarding matters outside the legal issues at hand, such as business advice, which therefore will not be privileged as it will not embody the above elements required to establish the privilege (i.e., the purpose of the communication was not to elicit legal advice). Waltz v. Exxon Mobil Corp., 2007 R.I. Super. LEXIS 7, at *21; see In re Ford Motor Co., 110 F.3d 954, 965 (3d 22–8

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.2

Cir. 1997). In essence, the privilege fails to protect an attorney’s business advice or any communication manifesting a dominant nonlegal purpose. Waltz v. Exxon Mobil Corp., 2007 R.I. Super. LEXIS 7, at *19–20. Again, parties cannot simply rely on the fact that an attorney is a named party on some communication or that an attorney was present in the room for some communication to classify the substance of the communication as privileged. Waltz v. Exxon Mobil Corp., 2007 R.I. Super LEXIS 7, at *13; see In re Avantel, 342 F.3d 311, 320–21 (W.D. Tex. 2003). For example, “simply sending a carbon copy to in-house counsel does not cloak a routine business communication with attorney-client privilege. The communication must have been for the purpose of securing legal advice.” Waltz v. Exxon Mobil Corp., 2007 R.I. Super LEXIS 7, at *11 (quoting Royal Surplus Lines Ins. v. Sofamor Danek Group, 190 F.R.C. 463, 475 (W.D. Tenn. 1998)). Thus, although an attorney may be privy or involved with the communication, that does not automatically categorize the communication as attorney-client privileged. Practice Note Rhode Island courts have held that recorded statements, transcribed or otherwise, taken by the insurers of parties in negligence actions were entitled to fall under the umbrella of the attorney-client privilege codified in Rule 26(b)(1) as the insurer was acting as an agent of the attorney in preparation of litigation or trial. Fireman’s Fund Ins. Co. v. McAlpine, 391 A.2d 84, 86 (R.I. 1978). However, pursuant to R.I. Gen. Laws § 9-19-31, if an attorney wishes to rely on an opposing party’s recorded statement, whether taken by an attorney, insurer, or agent, and introduce said statement at trial, the attorney must provide a copy of the statement to the opposing party within thirty days of the recording.

Ethics Commentary Pursuant to R. Prof. C. 1.4(c), when an attorney has not previously represented a client and can reasonably conclude that the client does not understand the mechanics of the attorney-client relationship, the attorney should take measures to inform the client with respect to issues such as confidentiality and preventing waiver of the privilege.

§ 22.2.5 Government Entities Just as corporations may invoke the attorney-client communications privilege where appropriate, so can government agencies. The privilege applies to communications by and between public officials and their counsel, whether government 22–9

§ 22.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

counsel or outside counsel. The same concerns regarding the threshold test of the communications being for the primary purpose of seeking legal advice are still critical to meeting the burden of proof if the government entity wants the communications to be protected. The Access to Public Records Act (APRA), § 38-2-1 et seq., may pose a challenge to government counsel; however, the act does not vitiate the privilege. Counsel should seek court intervention if faced with an APRA request that he or she believes seeks privileged communications. If the court in which the litigation is pending has determined that as a matter of law or pursuant to the laws of the court, a document is privileged and therefore will not be produced, then that precludes the disclosure of the same documents under the act. Hydron Labs., Inc. v. Dep’t of Attorney Gen., 492 A.2d 135, 139 (R.I. 1985). Practice Note In United States. v. Textron Inc., 507 F. Supp.2d 138, 147 (D.R.I. 2007), the court held that tax accrual work papers were not protected from the IRS by the attorney-client privilege, but were protected by both the new I.R.C. § 7525 tax practitioner–client privilege and by the attorney work-product privilege. Access to Public Records Act, § 38-2-1 et seq., through application of § 38-2-2(d)(5).

The attorney-client communications privilege extends from government counsel to private counsel they may hire for specific purposes. Interestingly, the Supreme Court of Rhode Island has ruled that it is not unconstitutional, illegal, or inappropriate for the attorney general to enter into a contingent fee agreement with an outside firm for the purpose of the outside firm assisting in noncriminal matters, as this often results in beneficial outcomes for society, such as less funds being appropriated from taxpayer money to fund litigation. State v. Lead Indus. Ass’n, 951 A.2d 428, 475 (R.I. 2008). The Attorney General’s Office, however, must retain “absolute and total control over all decision-making” in the proceedings and must put the citizens of Rhode Island (and the world in general) on notice to this fact. State v. Lead Indus. Ass’n, 951 A.2d at 475–77. The attorney-client communications privilege would extend to communications between the outside counsel and the State of Rhode Island (the client) because the counsel would constitute an agent of the Attorney General’s Office, even though the counsel is an attorney in his or her own right. State v. Lead Indus. Ass’n, 951 A.2d at 476–77. This agency relationship exists because the outside counsel is serving the interests of the attorney general, and therefore the State of Rhode Island, outside counsel has accepted this subordinate role, and he or she has agreed that the attorney general will have overall control and direction of the matter. State v. Lead Indus. Ass’n, 951 A.2d at 476–77. Therefore, in the discovery process, the outside counsel should be mindful of this agency relationship in 22–10

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.2

terms of evaluating communications that may be protected pursuant to the attorney-client privilege.

§ 22.3

THIRD PARTIES AND THE ATTORNEYCLIENT PRIVILEGE

Any information presented by the client to an attorney in the presence of a thirdperson who is not party to the suit and who is not an agent of either the client or the attorney is not considered privileged and is subject to disclosure. State v. Driscoll, 360 A.2d 857, 861 (R.I. 1976). There may be an inquiry as to whether the client reasonably understood, even amid the presence of the third party, that the communication would be confidential, and therefore give leeway for a factfinder to determine whether the communication should remain undisclosed. State v. Driscoll, 360 A.2d at 861. The presence of an attorney or a client’s agent during confidential communications, however, will not vitiate the privilege. It is the burden of the party claiming the privilege to prove that the agent was actually an agent. Rosati v. Kuzman, 660 A.2d 263, 265 (R.I. 1995). The test in Rhode Island to determine an agency relationship is: • the principal must manifest that the agent will act for him or her, • the agent must accept the undertaking, and • the parties must agree that the principle will be in control of the undertaking. Rosati v. Kuzman, 660 A.2d at 265 (citing Lawrence v. Anheuser-Busch, Inc., 523 A.2d 864, 687 (R.I. 1987)). In essence, the principal must control the work of the agent, and the actions of the agent must be in furtherance of a benefit for the principal. So if a principal-agency relationship exists, then there is no vitiating of privilege if a third party (the agent) is present during discussions between the attorney and client. Practice Note The identity of the third party is relevant and helpful in determining whether the communications were confidential. The court found that the presence of a polygraph examiner at a meeting between an attorney and his client failed to waive privilege because the examiner was clearly an agent of the attorney. Rosati v. Kuzman, 660 A.2d at 267.

22–11

§ 22.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 22.4

BREACH OF THE PRIVILEGE

Rule 1.6 of the Rhode Island Rules of Professional Conduct allows for an attorney to breach the confidentiality privilege in certain circumstances, including the following: (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b). (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; (3) to secure legal advice about the lawyer’s compliance with these Rules; or (4) to comply with other law or a court order. If possible, the breach of privilege contrary to the client’s interest should not exceed what the attorney reasonably believes is essential to facilitate the purpose of the disclosure. For example, if the disclosure is to be made before a judicial proceeding, the attorney should attempt to limit the exposure of the information to people strictly having a need to obtain said information via suitable protective orders. R. Prof. C. 1.6. Ethics Commentary The Rules of Professional Conduct do not create an independent protection to be extended to communications with the client.

22–12

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.5

§ 22.5

WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE

§ 22.5.1 Express Waiver As the attorney-client communications privilege is not absolute, a central tenet to the privilege is that attorney-client communications are only protected from disclosure if the privilege has not been waived. Rosati v. Kuzman, 660 A.2d 263, 265 (R.I. 1995). A client triggers waiver of the privilege expressly, implicitly or by putting the communications at issue, or by inadvertent disclosure. Once waiver is triggered, the privilege is discharged and communications between the attorney and client become discoverable. State v. Grayhurst, 852 A.2d 491, 512 (R.I. 2004). The courts have found that waiver of the privilege occurs in a variety of situations, including those in which the client has consented (or even facilitated) the release of information, and those in which he or she has not agreed to the disclosure. State v. von Bulow, 475 A.2d 995, 1007 (R.I. 1984). Attorney-client communications privilege may be waived through the client’s express disclosure of confidential information to a third party. Rosati v. Kuzman, 660 A.2d at 266. If any interactions between an attorney and client, which would constitute attorney-client privileged information if they had occurred just between the two parties, occur in the presence of a third party who is not an agent of the client or an agent, servant, or employee of the attorney, the privilege is thereby invalidated and the communications may be disclosed. State v. Driscoll, 360 A.2d 857, 861 (R.I. 1976). However, the mere presence of a third party during confidential communications is not necessarily a per se waiver of the privilege. For example, when the third party is acting as an agent of either the client or attorney in furtherance of the litigation and for the benefit of the client, that person’s presence during confidential discussions between the client and attorney will not constitute waiver of the privilege. See § 22.3, Third Parties and the Attorney-Client Privilege, above. Practice Note In Rosati v. Kuzman, 660 A.2d 263 (R.I. 1995), the client’s attorney accepted the services of the client’s family friend, Kenneth Kuzman, to assist in the defense of the client. Mr. Kuzman assisted in gathering information and investigating witnesses. Later, when the client was cleared of the charges and others were indicted, Mr. Kuzman was notified to appear for deposition in connection with his services to the client. The court found that because Mr. Kuzman acted as an agent of the client’s attorney to benefit the client, there was no

22–13

§ 22.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

breach in the attorney-client privilege when Mr. Kuzman was present during confidential conversations between the client and the attorney.

Ethics Commentary Rule 3.7(a) of the Rhode Island Rules of Professional Conduct provides that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. There are three exceptions to this rule, and these arise where • the testimony relates to an uncontested issue, • the testimony relates to the nature and value of legal services rendered in the case, or • disqualification of the lawyer would work substantial hardship on the client. This Rule is mentioned in the context of discovery due to the rare circumstance where a question arises concerning the source, accuracy, and completeness of information provided in responses to discovery. In comment number 6 to Rule 3.7, it is noted that “[i]n determining if it is permissible to act as advocate in a trial in which the lawyer will be a necessary witness, the lawyer must also consider that the dual role may give rise to a conflict of interest that will require compliance with rule 1.7 or 1.9.” If there is a conflict of interest, the lawyer must secure the client’s informed consent to the conflict, which must be confirmed in writing, if a conflict waiver is permissible under the circumstances.

The privilege may also be expressly waived if a party reveals or voluntarily testifies regarding portions of the actual consultations between the attorney and client. State v. von Bulow, 475 A.2d at 1007. It is important to note that the client would not waive the privilege by simply speaking in general about conversations he or she had with his or her attorney or discussing the subject facts underlying the conferences with the attorney. State v. von Bulow, 475 A.2d at 1008. The privilege-holder, however, cannot disclose portions of the consultation with his or her attorney that are favorable to his or her position in the legal proceedings, but then expect to be able to conceal the remainder of the communications, which could be considered damaging, by claiming they fall under the umbrella of the attorney-client privilege. State v. von Bulow, 475 A.2d at 1007; see Int’l Tel. & Tel. Corp. v. United Tel. Co. of Fla., 60 F.R.D. 177, 185–86 (M.D. Fla. 1973) (“If the client or his attorney at his instance takes the stand and testifies to privileged communications in part this is a waiver as to the remainder of the privileged consultation or consultations about the same subject.”). Rhode Island courts, pursuant to the public policy goal of fairness, would likely consider a partial waiver to constitute a total waiver of the entire consultation on the subject 22–14

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.5

communications, and the privilege-holder would be forced to disclose the damaging portion. Otherwise, leaving the remainder of the communications privileged, of which a portion was revealed to benefit the disclosing party, could result in inequity skewed toward the privilege-holder as the other party would be denied access to information of which he or she was entitled to examine in preparation of his or her defense. State v. von Bulow, 475 A.2d at 1007; see Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 551 (D.C. App. Ct. 1981) (“A party may not, therefore, insist upon protection of the privilege for damaging communications while disclosing those which it considers to be favorable to its position.”). Communications by and between an attorney and client of which the parties did not intend to remain confidential and which were subsequently disclosed would not vitiate the attorney-client relationship, as there was no privilege existing to waive. Rosati v. Kuzman, 660 A.2d at 267.

§ 22.5.2 Implied or At Issue Waiver Waiver of the attorney-client communications privilege may also occur implicitly, when a party brings the attorney-client communication to the forefront of the proceedings by putting it “at issue” or making disclosure of the communication vital to the outcome of the claims in the legal matter. State v. Grayhurst, 852 A.2d 491, 512 (R.I. 2004). Ethics Commentary Courts cannot apply a waiver analysis merely because it is in the interests of justice to do so. There must be some conduct that rises to the level of a waiver. State v. von Bulow, 475 A.2d 995 (R.I. 1984). In von Bulow, it was the defendant’s selective use of the work-product privilege that led the court to find “waiver.”

Rhode Island courts have held that if a client exhibits affirmative conduct by making otherwise confidential and privileged information relevant to the case, he or she has put that information “at issue” and will be denied the ability to claim attorney-client privilege to prevent disclosure of that information. Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d 156, 159 (R.I. 2000). This “at issue” waiver may occur if • as an element of a claim, a party directly cites to his or her reliance upon his or her attorney’s recommendation or testifies regarding his or her attorney’s advice in support of his or her claim so that the content of the disclosed legal advice is integral to the outcome of the claims;

22–15

§ 22.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• a party even merely asserts or alludes to a communication between himself or herself and the attorney (which in turn can result in waiver of other communications made during the same disclosure regarding the same subject); or • a party places the nature of the attorney-client relationship as a factor in the proceedings. Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d at 159. This again is buttressed by the philosophy of fairness in that if a party brings otherwise confidential information into relevance, then the application of the privilege to deny disclosure to other parties would be detrimental and inequitable in the proceedings. Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d at 159. In Cunha, the Rhode Island Supreme Court found the test in Metropolitan Life v. Aetna Casualty & Surety Co., 730 A.2d 51 (Conn. 1999) was germane in its determination of whether an implicit waiver of the attorney-client privilege had occurred. The court agreed, “This determination [of whether communications had been implicitly waived] turns on whether the actual context of the attorneyclient communication has been placed at issue such that the information is actually required for the truthful resolution of the issues raised in the controversy.” Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d at 160. Thus, unless a party can demonstrate that privileged discourse between the opposing party and his or her respective attorney is vital and integral to the party’s case or without which the party will be unable to prepare a defense, the information will remain privileged. Notwithstanding, if a party just argues that information contained in established privileged communications may be significant to the outcome of the case, that does not trigger the “at issue” waiver and thus does not place the context of communication in the midst of the proceeding. “If admitting that one relied on legal advice in making a legal decision put the communications relating to the advice at issue, such advice would be at issue whenever the legal decision was litigated” and “if that were true, the at issue doctrine would severely erode the attorney-client privilege and undermine the public policy considerations upon which it is based.” Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d at 160 (quoting Metro. Life v. Aetna Cas. & Sur. Co., 730 A.2d at 61); see also Waltz v. Exxon Mobil Corp., C.A. No. PC-02-2436, 2007 R.I. Super. LEXIS 7, at *24 (R.I. Super. Ct. Jan. 11, 2007) (“There is a vast difference between claiming that privileged information may be helpful to an adversary in pursuit of its claim and determining that there would be no case at all without a waiver because the context of the privileged communications are themselves the subject of the dispute.”).

22–16

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.5

Practice Note An in camera review by a hearing justice is most appropriate when there is a discovery dispute regarding materials that may be protected by the attorney-client privilege. This alleviates the danger of not providing integral documents to the requesting party, but in the same vein does not force discovery of documents or conversations that are legitimately attorney-client privileged. Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d at 160.

§ 22.5.3 Inadvertent Disclosure An inadvertent disclosure of attorney-client privileged communications does not automatically trigger waiver of the attorney-client privilege. However, it is clear that an attorney should always take great pains in managing and processing confidential documents to prevent disclosure to the best of his or her ability. Moreover, Rhode Island courts do not require an intent to waive the attorney-client privilege for a waiver to occur. State v. von Bulow, 475 A.2d 995, 1006 (R.I. 1984). No Rhode Island appellate court has addressed waiver through inadvertent disclosure, but courts in the First Circuit have held that the attorney-client privilege may be forfeited upon the inadvertent disclosure of confidential information and/or the failure to take immediate action to rectify the situation upon knowledge of the error. Gail v. New Eng. Gas Co., 243 F.R.D. 28 (D.R.I. 2007); see FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 483 (E.D. Va. 1991) (inadequate efforts to rectify the error of inadvertent disclosure supports the conclusion of waiver). Courts in the First Circuit have differed, however, as to the circumstances necessary to cause an inadvertent disclosure that would create a waiver of the attorney-client privilege. Some courts have applied the “strict accountability rule,” which results in an immediate waiver of the privilege. Gail v. New Eng. Gas Co., 243 F.R.D. at 35. Other courts, however, have adopted the “totality of circumstances” test, which looks to the mechanism of how the confidential information was released, if measures were taken to avoid the disclosure, and the reaction or recall of the documents once the disclosure is realized. Gail v. New Eng. Gas Co., 243 F.R.D. at 35; see Amgen, Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 290 (D. Mass. 2000) (“inadvertent disclosure only constitutes a waiver if, in view of the totality of the circumstances, adequate measures were not taken to avoid the disclosure.”) For example, if an attorney does not conduct a prudent review of documents prior to producing them to opposing counsel and releases confidential information, that could constitute an inadvertent waiver of the attorney-client privilege. Another court may not view that behavior as a waiver, but if the same attorney does not immediately file a protective order to retrieve the privileged material, the court could then find waiver of the privilege. 22–17

§ 22.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

If no inadvertent waiver is found, however, the privilege-holder could demand the return of the documents that were inadvertently disclosed. Gail v. New Eng. Gas Co., 243 F.R.D. at 37; see Hydraflow, Inc. v. Enidine, Inc., 145 F.R.D. 626, 639 (W.D.N.Y. 1993) (party directed to “promptly return all privileged documents . . . without retaining any copies, and to avoid making any use of such documents during the future course of this action”). Practically speaking, this return of documents and bar from using the documents in legal proceedings is virtually impossible, as it is unfeasible to preclude counsel from utilizing information derived from the documents in the discovery or deposition process or distinguish between legal conclusions derived from the documents from those arrived at independently. Gail v. New Eng. Gas Co., 243 F.R.D. at 38. Overall, the Rhode Island courts seem to be moving in the direction that would focus on formulating a remedy to safeguard the attorney-client communications privilege to a reasonable extent without unfairly penalizing the recipient of the inadvertent disclosure. Practice Note Some states have adopted Rule 4.4(b) of the ABA Model Rules of Professional Conduct, which avers that an attorney who “receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Some states have applied the revised ABA Model Rule 4.4(b), which additionally requires that attorneys stop reading documents inadvertently sent to them, and return the documents to the sender. Rhode Island, however, has left the decision to the court as to whether ceasing reading and returning the documents is necessary.

§ 22.6

EFFECT OF ASSERTING ATTORNEYCLIENT PRIVILEGE

Attorneys must carefully consider the benefits and, alternatively, the repercussions that may result from claiming attorney-client privilege. An issue to consider is that once a party asserts the privilege, it is the opposing party’s prerogative to demonstrate why the privilege may be inappropriate or overly broad, and that barring the discovery of information will result in injustice or undue hardship. State v. von Bulow, 475 A.2d 995, 1009 (R.I. 1984). Although the definitive determination of the privilege is vested with the presiding trial justice, this could cause a presumption (or even contention) on behalf of opposing counsel that certain information is being shielded under the guise of attorney-client communications privilege because of its potentially damaging effect on the privilegeholder’s case. Rosati v. Kuzman, 660 A.2d 263, 268 (R.I. 1995). 22–18

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.6

Practice Note As claims of attorney-client communications privilege may create a contentious dichotomy between having a legitimate claim to the privilege and disclosing certain information to achieve particular goals, while maintaining other information under the umbrella of the attorneyclient communications privilege, an in camera review of the contested information, protective orders, and confidentiality agreements may be helpful to defuse arguments as to whether integral information is being withheld from the opposing party or if the privilege itself is justifiable. See, e.g., Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009).

§ 22.7

THE JOINT DEFENSE PRIVILEGE

The joint defense privilege protects the exchange of information between an individual and another’s attorney when the communications are a function of a continuing endeavor to formulate a global defense strategy. Ageloff v. Noranda, 936 F. Supp. 72, 76 (R.I. 1996). Pursuant to the District Court of Rhode Island, to establish the joint defense privilege, parties would need to show: • the communications were made in the course of a joint defense, • the statements were designed to further the effort, and • the privilege has not been waived. Ageloff v. Noranda, 936 F. Supp. at 76 (citing United States v. Bay State Ambulance & Hosp. Rental Serv., 874 F.2d 20, 28 (1st Cir. 1989)). The Providence Superior Court has identified a “joint defense” or “common interest rule” as an exception to the rule whereby presence of a third party vitiates attorney-client privilege. Waltz v. Exxon Mobil Corp., C.A. No. PC-02-2436, 2007 R.I. Super. LEXIS 7, at *14 (R.I. Super. Ct. Jan. 11, 2007); see Cavallaro v. United States, 284 F.3d 236, 249–51 (1st Cir. 2002). The court held that this protection against disclosure is usually brought into play when one attorney represents multiple clients in the same action or, in the alternative, when separate lawyers are counsel for two or more clients in one proceeding. Waltz v. Exxon Mobil Corp., 2007 R.I. Super. LEXIS 7, at *15. Communications between nonlitigant parties may also qualify for joint defense privilege under certain circumstances. Waltz v. Exxon Mobil Corp., 2007 R.I. Super. LEXIS 7, at *15. 22–19

§ 22.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

In evaluating a challenge to the joint defense privilege, a court should consider • whether there was existing litigation or a strong possibility of future litigation, and • whether the materials were provided for the purpose of mounting a defense against the parties who joined together. Waltz v. Exxon Mobil Corp., 2007 R.I. Super. LEXIS 7, at *16 (citing Royal Surplus Lines Ins. Co. v. Sofamor Danek Group, 190 F.R.C. 463, 475 (W.D. Tenn. 1998)). The Providence Superior Court noted that a court could look to whether the groups faced palpable litigation, whether there was a common interest within litigation, and whether the information claimed as privileged was formulated for the purpose of mounting a common defense, rather than addressing a separate issue or concern apart from the anticipated or pending litigation. Waltz v. Exxon Mobil Corp., 2007 R.I. Super. LEXIS 7, at *17; see Royal Surplus Lines Ins. Co. v. Sofamor Danek Group, 190 F.R.C. 463, 472 (W.D. Tenn. 1998)) (“courts should examine the actual or potential relationship of the parties” to establish whether a shared interest in any potential litigation exists). Practice Note Pursuant to Rhode Island Ethics Opinion 96-08 (1996), an attorney represented multiple defendants in an action brought against them by an estate administrator. The attorney was informed by one of the defendants of damaging information that had the ability to impact the defense of the other codefendants. The Rhode Island Ethics Advisory Panel found that the attorney was not permitted to disclose that information to the codefendants because the information was protected by the R. Prof. C. 1.6 (regarding confidentiality of information). However, the ethics panel found that if the attorney believed a conflict of interest existed as a result of the inability to share the information among her clients, the attorney should have withdrawn from representing all parties.

§ 22.8

THE WORK-PRODUCT DOCTRINE

The principle underpinning the work-product doctrine is to “prevent an attorney from ‘freeloading’ on his or her adversary’s work” and allow the counsel to conduct a thorough and analytical examination and preparation of the client’s case. Cabral v. Arruda, 556 A.2d 47, 48 (R.I. 1989); see State v. DiPrete, 710 A.2d 1266, 1286 n.13 (R.I. 1998). The seminal work-product case in the United States in which the doctrine was first defined is Hickman v. Taylor, 329 U.S. 495 (1947). State v. von Bulow, 475 A.2d 995, 1009 (R.I. 1984). The work-product 22–20

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.8

doctrine ensures that certain documents and tangible things that are “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative” remain privileged in terms of discovery requests. Crowe Countryside Realty Assocs., Co. v. Novare Eng’rs, Inc., 891 A.2d 838, 842 (R.I. 2006) (quoting Super. R. Civ. P. 26(b)(3)). Work-product documents are divided into two categories: “core” or “opinion” work-product and “factual” or “ordinary” work-product. Henderson v. Newport County Reg’l Young Men’s Christian Ass’n, 966 A.2d 1242, 1246 (R.I. 2009); Crowe Countryside Realty Assocs., Co. v. Novare Eng’rs, Inc., 891 A.2d at 842. Core or opinion work-product involves materials such as an attorney’s mental impressions, conclusions, opinions, or legal theories, all of which are denoted as absolutely immune from discovery. Crowe Countryside Realty Assocs., Co. v. Novare Eng’rs, Inc., 891 A.2d at 842. Factual or ordinary work-product entails privileged materials that are qualifiedly immune from discovery, meaning that they may be found discoverable “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Crowe Countryside Realty Assocs., Co. v. Novare Eng’rs, Inc., 891 A.2d at 842 (quoting Super. R. Civ. P. 26(b)(3)). The Rhode Island Supreme Court has adopted the “because of” test in order to determine whether a material was prepared in anticipation of litigation, thereby constituting work-product. Cabral v. Arruda, 556 A.2d at 49. “[T]he test is whether, in light of the nature of the document or tangible material and the facts of the case, the document can be said to have been prepared or obtained because of the prospect of litigation, by or for an adverse party or its agent.” Cabral v. Arruda, 556 A.2d at 49. Thus, materials such as documents prepared in the ordinary course of business or records unrelated to the litigation would not qualify as work-product as they were not prepared with an eye toward legal proceedings. However, documents that serve a “dual purpose” in that they were created in part with the expectancy of litigation, but also in connection with standard business and regulatory procedures, are subject to the work-product privilege. Brokaw v. Davol, Inc., C.A. No. 07-5058, 2009 R.I. Super. LEXIS 45, at *5 (R.I. Super. Ct. May 15, 2009). Under Super. R. Civ. P. 26(b)(5), if a party withholds information on the grounds that it is privileged as it was prepared in anticipation of litigation or for trial of the matter, that party is required to explain the substance of the withheld documents as to allow other parties to accurately evaluate whether the application of the privilege was appropriate. Preparing a privilege log is a must. D’Amario v. State, 686 A.2d 82, 86 (R.I. 1996).

22–21

§ 22.8

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

As to challenges to the work-product doctrine, the party contesting the privilege holds the burden of demonstrating that the requested material is discoverable. Gaumond v. Trinity Repertory Co., 909 A.2d 512, 517 (R.I. 2006). Thus, the challenger to the privilege should set forth reasoning such as that he or she has a substantial need for the document, or should show a resulting injustice or undue hardship from lack of discovery. Fireman’s Fund Ins. Co. v. McAlpine, 391 A.2d 84, 90 (R.I. 1978). Practice Note The Rhode Island Supreme Court addressed whether surveillance material constituted work-product in the case of Cabral v. Arruda, 556 A.2d 47 (R.I. 1989). The court found that surveillance material was protected under the work-product doctrine and therefore was qualifiedly immune from discovery as it aided an attorney in understanding the loss at issue and provided a means to impeach the plaintiff’s description of the incident. Cabral v. Arruda, 556 A.2d at 49. The court averred that the simple existence of observational data created by the attorney did not amount to such a hardship that would surmount the work-product doctrine if it was solely for the attorney’s own use. Cabral v. Arruda, 556 A.2d at 49. However, because “the introduction of surveillance photographs and films at trial presents the problem of possible exaggeration, distortion and even fraud by defendant,” the court found this constituted an undue hardship to the opposing side and ruled surveillance discoverable in that instance. Cabral v. Arruda, 556 A.2d at 50 (emphasis added). Nevertheless, the court also asserted that the surveilling party has the right to depose the plaintiff before producing the observational information, to preserve the advantage of the information in smoking out the plaintiff’s case. Cabral v. Arruda, 556 A.2d at 50.

Practice Note In Irvine v. Inn at Castle Hill, Inc., 670 A.2d 1263 (R.I. 1996), the defendant’s insurer had an investigator interview two witnesses to the incident shortly after the date of loss. The plaintiff challenged the defendant’s claims that the witness statements were covered under the work-product doctrine. The court held that witness statements are discoverable and do not become the exclusive property of whichever party was able to interview the witness first.

22–22

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.9

§ 22.9

INTERPLAY BETWEEN ATTORNEYCLIENT COMMUNICATIONS PRIVILEGE AND THE WORK-PRODUCT DOCTRINE

Fundamental to modern discovery is the theory that all relevant, nonprivileged documents and other materials should be disclosed to the opposing parties prior to trial. Cabral v. Arruda, 556 A.2d 47, 48 (R.I. 1989); see Wright & Miller, 8 Federal Practice and Procedure: Civil § 2001 at 14, 15 (1970). “The rationale for such disclosure is that controversies should be decided on their merits rather than upon tactical strategies.” Cabral v. Arruda, 556 A.2d at 48. Functionally, the attorney-client communications privilege operates as a narrow exception to the general discovery rule in which every person called to a legal proceeding must put forth all information relevant to that matter. State v. von Bulow, 475 A.2d 995, 1004 (R.I. 1984). Under the communications privilege, client and attorney are not required to reveal the substance of a give and take of legal advice so long as the communications were intended to be confidential and made in furtherance of the litigation at hand. (As discussed earlier herein, however, the communications privilege does not shield disclosure of facts— including facts that were revealed to the attorney during the confidential communications.) Similarly, the work-product doctrine extends absolute immunity only to materials, or those portions of materials, that contain an attorney’s mental impressions, conclusions, opinions, or legal theories. Town of N. Kingstown v. Ashley, 374 A.2d 1033, 1036 (R.I. 1977); Super. R. Civ. P. 26(b)(3). However, the work-product doctrine also shields materials that contain factual information and otherwise nonprivileged material provided no hardship is caused by withholding it. Thus, in some respects, the work-product doctrine is functionally broader than the attorney-client communications privilege because it “protects both the attorney-client relationship and a complex of individual interests particular to attorneys that their clients may not share.” State v. von Bulow, 475 A.2d at 1009 (quoting In re Sealed Case, 676 F.2d 793, 809 (D.D.C. 1982)). The Hickman court, which established the work-product doctrine, “scrupulously avoided recognizing a general privilege for work product.” State v. von Bulow, 475 A.2d at 1009. Additionally, as to the attorney-client communications privilege, the privilege only extends to just that—communications between the attorney and client. The work-product doctrine, however, encompasses materials created by the client, attorney, or other individuals, including a party’s insurance representative, so long as the materials were prepared in anticipation of litigation. Henderson v. Newport County Reg’l YMCA, 966 A.2d 1242, 1248 (R.I. 2009). “Although generally favoring the reciprocal disclosure of relevant information, the rules of discovery are littered with constraints intended to comport with other competing 22–23

§ 22.9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

interests, such as protecting the privacy of an attorney’s work produced in preparation of trial.” Henderson v. Newport County Reg’l YMCA, 966 A.2d at 1246. Both the attorney-client privilege and the work-product doctrine, however, serve as shields to protect and ensure that preparation of the matter toward trial is carried out in the best interests of the client. Advisably, both privileges should not be used as offensive tools of litigation. State v. von Bulow, 475 A.2d at 1007.

§ 22.10

PRACTICAL CONSIDERATIONS

§ 22.10.1 When to Assert the Attorney-Client and WorkProduct Privileges If an attorney believes that documents or materials are protected under the workproduct doctrine or the attorney-client communications privilege, it is important to assert the privilege or privileges upon first response to discovery requests that seek either the protected material or material in connection with the same. This is because you cannot “un-ring” the bell as to waiver of the attorney-client privilege; once some confidential conversations are disclosed, the opposing party has the right to demand the substance of the whole lot. The same theory is recognized as to the work-product doctrine, in that if documents that contain workproduct materials are forwarded to the opposing party, it is virtually impossible to excise that information from the opposing attorney. An attorney is well advised to exercise well-reasoned privileges, but can later supplement discovery responses if the attorney believes the opposing attorney’s challenges are well-founded. Practice Note Prior to 2002, as bad faith claims were automatically severed from breach of contract claims against the same insurer, an attorney was not entitled to the insurer’s claims file until the resolution of the breach of contract action, which must be in favor of the policyholder. Bartlett v. John Hancock Mut. Life Ins. Co., 538 A.2d 997 (R.I. 1998). However, the court in Skaling v. Aetna Insurance Co. in part overturned this premise, thus allowing the matters to proceed in tandem because “[i]t makes little sense that an insurance company may deny a claim, . . . behave in a manner inconsistent with its implied duties of fair dealing and be insulated from tort liability for its bad faith conduct because it fortuitously survives a motion for judgment as a matter of law, yet is ultimately found to have breached the insurance contract.” Skaling v. Aetna Ins. Co., 799 A.2d 997, 1005 (R.I. 2002). This indicates that an insurer’s claims file, which would

22–24

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.10

be essential to the policyholder’s case in the bad faith action, would possibly be discoverable by the policyholder while the breach of contract action was pending. The potential discovery of the claims file will likely trigger various attorney-client and work-product privilege assertions on behalf of the insurer, as the release of the file would be detrimental to the insurer’s defense of the breach of contract case, and probable challenges to such claims of privilege by the insured.

It is important not to assert the attorney-client and work-product privileges as a means to shield the disclosure of discoverable material due to the detrimental effect it may have on the producing party’s case. See Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at * ___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 20055702, 2009 R.I. Super. LEXIS 74, at *1 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009). The Langley court emphasized the importance of good-faith assertions of the attorney-client communications and work-product privileges so as not to undermine the whole legal process, as “lawyers who advise their clients to hold back on necessary clarifications, or otherwise obstruct the truth-finding process, do so at their own, and their client’s peril.” Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 3328496, at * ___ (R.I. Super. Ct. July 1, 2009), amended by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 20055702, 2009 R.I. Super. LEXIS 74, at *___ (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009) (quoting Leo’s Gulf Liquors v. Lakhani, 802 So.2d 337 (Fla. Dist. Ct. App. 2001)).

§ 22.10.2 What to Do When an Adverse Party Claims Attorney-Client Privilege or Work-Product Protection Attorneys and clients alike must remember that the determination of whether information, documents, and tangible materials should be discoverable rests solely with the discretion of the trial judge, who must examine the facts and circumstances surrounding each claim of privilege and each respective challenge of the same. Fireman’s Fund Ins. Co. v. McAlpine, 391 A.2d 84, 90 (R.I. 1978). Without the ability to protect their own conclusions and theories from discovery, attorneys may not be able to fully and confidently prepare expert witnesses for their client’s trials. Permitting full disclosure of 22–25

§ 22.10

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

everything revealed to expert witnesses might hamper the trial preparation process because attorneys would be reluctant to reveal their mental impressions, legal theories, trial tactics, and strategies to testifying experts. Crowe Countryside Realty Assocs., Co. v. Novare Eng’rs, Inc., 891 A.2d 838, 847 (R.I. 2006). Furthermore, [a] party who withholds information that is “otherwise discoverable” by claiming that it is privileged or subject to protection as trial preparation material is required under Super. R. Civ. P. Rule 26(b)(5) to make this claim expressly and to describe “the nature” of the documents not produced or disclosed in a manner that will enable other parties to assess the applicability of the privilege or protection that is claimed. D’Amario v. State, 686 A.2d 82, 86 n.11 (R.I. 1996). This fail-safe ensures that the opposing side is not prejudiced. When faced with an assertion of the privilege, opposing counsel should insist on securing a full privilege log if one has not been provided, and if there is any question that the log is incomplete, file a motion to secure a court order that will require that the log be complete. Appropriate discovery sanctions may be requested, i.e., any documents subsequently identified will not be afforded protection or in the alternative, may not be relied on by counsel without prior disclosure of the document to opposing counsel. Counsel need to know that they have secured all nonprivileged/relevant documents and received a ruling that other documents are not discoverable; otherwise, they are risking being surprised at trial. For example, under R.I. Gen. Laws § 9-19-31, if an attorney opts to waive the work-product privilege and introduce at trial or otherwise a recorded statement given by the opposing party, the attorney must have supplied the opposing party with a copy of the statement within thirty days of taking the statement. This rule applies regardless of whether the attorney, his or her agent, or the client’s insurer actually took the opposing party’s statement. Without compliance, the trial judge may rule the statement inadmissible due to possible prejudice to the opposing side. See Practice Note in § 22.2.4, Nature of Communications, above, for further discussion.

22–26

ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT

§ 22.10

Practice Note The District Court of Rhode Island adopted the advisory committee’s notes to Fed. R. Civ. P. 26 and “indicated that factual information considered by a testifying expert, even when derived from counsel, must be disclosed.” Crowe Countryside Realty Assocs., Co. v. Novare Eng’rs, Inc., 891 A.2d at 846.

22–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

22–28

CHAPTER 23

Discovery from Out-of-State and Foreign Nonparty Witnesses Randall L. Souza § 23.1

Introduction ........................................................................ 23–1

§ 23.2

Obtaining Nonparty Discovery in Other States Within the United States.................................................... 23–2

§ 23.3

§ 23.2.1

Options Available Under the Statutes and Rule 28(b)..................................................... 23–2

§ 23.2.2

Obtaining a Commission..................................... 23–6

Obtaining Discovery from Nonparty Witnesses Located in Foreign Countries............................................ 23–8 § 23.3.1

§ 23.3.2

§ 23.4

Obtaining Discovery in Countries Pursuant to the Hague Evidence Convention ..................... 23–8 (a)

Voluntary Discovery Through Notices or Commissions ....................................... 23–10

(b)

Involuntary Discovery Through Letters of Request ................................................ 23–12

Obtaining Discovery in Countries Not Signatories to the Hague Evidence Convention ........................................ 23–17

Obtaining Discovery in Rhode Island for Use in an Out-of-State Case.................................................... 23–18

EXHIBIT 23A—Motion for Issuance of Commissions ............... 23–21 EXHIBIT 23B—Order for Commission to Take Deposition and Issue Out-of-State Subpoena.................................................. 23–23

23–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

EXHIBIT 23C—Proposed Order Pursuant to New Jersey Court Rule 4:11-4 ............................................................................23–25 EXHIBIT 23D—Subpoena for Issuance to New Jersey Witness.....................................................................23–27 EXHIBIT 23E—Deposition Notice ................................................23–29 EXHIBIT 23F—Application for Issuance of Request for the Examination of Witness Pursuant to the Hague Convention for the Taking of Evidence Abroad............................23–31 EXHIBIT 23G—Request for International Judicial Assistance Pursuant to the Hague Convention .............................23–33 EXHIBIT 23H—Sample Cover Letter ..........................................23–37 EXHIBIT 23I—Originating Motion and Associated Papers for Filing with Australian Court ....................................................23–39 EXHIBIT 23J—Miscellaneous Petition for Issuance of Subpoena(s) to Compel Deposition and/or Inspection of Documents for Use in an Out-of-State Action ..........................23–47 EXHIBIT 23K—Motion for Order to Issue Subpoena for Use in Foreign Litigation ..........................................................23–49 EXHIBIT 23L—Proposed Order Issuing Subpoena in Rhode Island for Use in Foreign Litigation ..............................23–51 EXHIBIT 23M—Bibliography.......................................................23–53

23–ii

CHAPTER 23

Discovery from Out-of-State* and Foreign Nonparty Witnesses Randall L. Souza

Scope Note This chapter explores the practical issues involved in obtaining discovery in Rhode Island cases from nonparty witnesses residing in other states within the United States or in foreign countries. It begins with an analysis of the issues involved in dealing with nonparties within the United States, reviewing the various options available and discussing in detail the use of Commissions. The chapter continues with an analysis of discovery from nonparty witnesses located in foreign countries, including guidance on letters of request and how to comply with the requirements of the Hague Evidence Convention. The chapter concludes with an analysis of taking discovery in Rhode Island for use in cases pending in other states. Exhibits include motions, proposed orders, petitions, and other papers used in connection with commissions, letters of request, and applications for international judicial assistance.

§ 23.1

INTRODUCTION

With the advent of the Internet and the growing globalization of the economy, civil litigation in the State of Rhode Island has increasingly become more national and international in scope. Also, given Rhode Island’s geographical location as a neighbor to larger states with greater metropolitan areas, witnesses to a civil action brought in Rhode Island frequently reside in neighboring Massachusetts or Connecticut. Indeed, it is growing increasingly rarer that all of the documents and witnesses relevant to a Rhode Island lawsuit are located within Rhode Island. As a result, Rhode Island litigants face new challenges when seeking *

The text of § 23.3 of this chapter has been adapted to Rhode Island practice from Chapter 18, § 18.3, of Massachusetts Discovery Practice (MCLE, Inc. 2002 & Supp. 2005, 2009). The author and MCLE acknowledge and thank the authors of that chapter, Richard S. Sanders, Esq., and Christina N. Smith, Esq., for their original authorship of the Massachusetts publication.

23–1

§ 23.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

discovery from nonparties who reside or conduct business outside the state. In light of the increased regionalization (and globalization) of litigation, this chapter explores the practical issues involved in obtaining discovery from nonparty witnesses residing in other states within the United States or in foreign countries. The central issue when obtaining discovery from a third-party witness from another state or country is compelling the witness to appear for a deposition or produce documents. While this is less of an issue in federal litigation, it is a significant problem for state court litigants, because state court judges do not have jurisdiction to compel a third-party witness from another state to respond to discovery requests or to comply with a Rhode Island subpoena. As discussed below, however, there are several mechanisms by which Rhode Island litigants can obtain discovery from nonparty witnesses residing out of state or out of the country. This chapter also addresses the procedure to follow in order to issue subpoenas in Rhode Island for use in actions pending out of state. Frequently, a Rhode Island resident is a nonparty witness to an action pending in another state. In those circumstances, it is necessary for Rhode Island counsel to commence a miscellaneous petition action in Rhode Island Superior Court, in order to issue subpoenas here to take depositions and/or procure documents from a Rhode Island resident for use in a case pending in another state.

§ 23.2

OBTAINING NONPARTY DISCOVERY IN OTHER STATES WITHIN THE UNITED STATES

§ 23.2.1 Options Available Under the Statutes and Rule 28(b) Rhode Island General Laws § 9-18-5 and Super. R. 28(b) set out a statutory and procedural scheme for obtaining evidence outside Rhode Island for use in an action pending within Rhode Island. The statute, entitled “Manner of taking depositions outside state for use in state,” provides as follows: Depositions may be taken without this state to be used in the tribunals of this state, upon written notice conforming to the applicable rules of procedure, and shall be taken in the manner and with the formalities required by the law of this state or the state, district, territory, or country in which the deposition shall be taken; or shall be taken, if taken in any other state, 23–2

DISCOVERY FROM OUT-OF-STATE WITNESSES

§ 23.2

district, or territory of the United States, before a commissioner appointed by the governor of this state, or before a judge, chancellor, justice of the peace, notary public, or civil magistrate of the state, district, or territory, respectively, or, if taken out of the United States, before a resident official of the United States, or, if the deponent is in the military, air, or naval service of the United States, before a colonel, lieutenant colonel, or major in the army or air force, or before any officer in the navy not below the grade and rank of lieutenant commander. And in every such case under the second method, the party causing the depositions to be taken shall notify the adverse party, or his or her attorney of record, of the time and place appointed for taking the deposition; and the notification issued by the official before whom the deposition is to be taken shall be served, in the manner as provided in § 9-18-4, such reasonable time before the taking of the deposition as will give the adverse party a full opportunity to be present in person or by attorney and put interrogatories to the deponent, if he or she thinks fit. R.I. Gen. Laws § 9-18-5. Rule 28(b), governing depositions taken “Outside the State,” provides as follows: Within another state, or within a territory or insular possession subject to the dominion of the United States, or in a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, including any applicable treaty or convention, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or (3) pursuant to a letter of request (whether or not captioned a letter rogatory). A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter 23–3

§ 23.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter of request may be addressed “To the Appropriate Authority in (here name the state, territory, or country).” Evidence obtained in a foreign country in response to a letter of request need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules. Thus, pursuant to the statute and Rule 28(b), a party to litigation in Rhode Island has two options for obtaining discovery from a nonparty, out-of-state witness located in the United States (note that while both the statute and Rule 28(b) also address taking discovery in foreign countries, that subject is discussed below starting at § 23.3): • conducting discovery upon written notice before an individual authorized to administer oaths in the foreign state; or • conducting discovery pursuant to a commission appointed by a Rhode Island court. Determining which option to pursue will depend on several factors, including the discovery procedures of the jurisdiction from which discovery is sought and whether the witness is willing to testify voluntarily. For example, Rhode Island courts may not have jurisdiction over a nonparty who does not agree to produce discovery or appear for a deposition. Without jurisdiction, the Rhode Island court cannot compel discovery pursuant to a written notice. Likewise, a Rhode Island subpoena cannot compel the attendance of a nonresident witness to Rhode Island, if served on the witness outside of Rhode Island. Thus, the party seeking discovery will not be able to use a written notice if the nonparty does not agree to appear voluntarily. Further, a lawyer cannot compel the nonparty to produce documents at the deposition under Rule 30(b)(5) without a validly issued and served subpoena duces tecum. Finally, although a nonparty may initially agree to appear voluntarily—i.e., without being subpoenaed—the witness may not actually appear. If a nonparty witness who originally agreed to appear voluntarily for deposition ultimately refuses to appear, or voluntarily appears but refuses to answer questions, there is no legal recourse available against that person. Thus, even if all parties agree or stipulate to the discovery and the discovery procedures relative to out-of-state 23–4

DISCOVERY FROM OUT-OF-STATE WITNESSES

§ 23.2

witnesses, there may be strategic reasons for not approaching the out-of-state witness informally. Accordingly, this author cautions that the only circumstances under which it is prudent to notice a deposition of an out-of-state witness without a Commission issued by a Rhode Island court and without a subpoena issued by the home state of the witness is when the lawyer is certain that the witness will appear for his or her deposition and will cooperate fully with the discovery process. Absent this limited situation, this author recommends that parties proceed via a Rhode Island commission and a subpoena issued by a court in the state where the witness is located. A subpoena issued out of a court that has jurisdiction over the witness compels that person to appear, and the issuing court may sanction the witness for failing to appear. The issuing court can also rule on motions to compel testimony if privilege disputes or other controversies arise during the course of the deposition. In addition, in certain situations counsel may opt to pursue more than one discovery method in order to ensure that the information is obtained in a timely manner. Counsel can avoid all uncertainty regarding the voluntary cooperation of the witness and/or can procure the production of documents from the witness by obtaining discovery from an out-of-state witness through the issuance of a commission. Practice Note Rhode Island lawyers frequently request that the court issue a “letter rogatory,” rather than a commission. To this author’s knowledge, such a request is misplaced because there is no such thing as a letter rogatory under Rhode Island law. Letters rogatory do exist in neighboring Massachusetts (see M.G.L. c. 233A, § 10), where both commissions and letters rogatory are available to Massachusetts litigants. In Rhode Island, a “letter rogatory remains a synonym for letter of request” (quoting Official 1995 Committee Note to Super. Ct. R. Civ. P. 28). A letter of request is a document specified in the Hague Evidence Convention and is used to procure discovery outside the United States in a foreign country. The only reference to a letter rogatory in the Rhode Island procedural rules appears in Super. Ct. R. Civ. P. 28(b)(3), which discusses depositions taken in a foreign country “pursuant to a letter of request (whether or not captioned a letter rogatory).” The term “letter rogatory” does not otherwise appear in any Rhode Island rule or statute.

23–5

§ 23.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 23.2.2 Obtaining a Commission Rhode Island General Laws § 9-18-9 sets out the procedure for obtaining discovery from an out-of-state, nonparty witness through a commission. The statute provides as follows: Any court may, on the motion of either party in any action, suit, or proceeding, civil or criminal, pending therein, in which a deposition may be used, or before any commissioners, referees, or auditors appointed by any such court or under a rule from it, grant a commission to take depositions according to law, whenever it may be necessary to prevent a failure or delay of justice, on such terms as such court, by general or special order, may direct; and the deposition, so taken, may be used in any state of the cause, on appeal or otherwise. R.I. Gen. Laws § 9-18-9. Rule 28(b) describes the standard to be applied by the hearing justice for the issuance of a commission in Rhode Island: A commission . . . shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission . . . that the taking of the deposition in any other manner is impracticable or inconvenient. . . . A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. Counsel seeking issuance of a commission must file an application or motion with the Rhode Island court. Counsel should prepare the following documents: • a motion for issuance of commission(s); and • a proposed order for each commission to take deposition and issue out-of-state subpoena. The motion should describe the nonparty person or entity from which discovery is sought, the reasons why such discovery is relevant and necessary, and the outof-state location of the nonparty witness. The order should recite that the person to whom the commission is directed is duly authorized to administer oaths in the 23–6

DISCOVERY FROM OUT-OF-STATE WITNESSES

§ 23.2

jurisdiction where the deposition is to take place and that the state court of that jurisdiction is authorized to issue a subpoena to the witness in aid of discovery in the Rhode Island case. The motion should be placed on the county’s regular motion calendar (unless the case is pending on a specific calendar, such as the business calendar in Providence County), and served on counsel of record in the Rhode Island action in accordance with Rule 5. There is no requirement, at the motion stage, to provide notice to the prospective witness. A sample motion for issuance of commissions is included as Exhibit 23A. A sample order for commission to take deposition and issue out-of-state subpoena is included as Exhibit 23B. Once the order is entered, counsel should acquire a certified copy of the order from the court clerk (with a raised seal, if possible). The certified copy of the order is used to as an exhibit to the petition or motion to issue a subpoena and a deposition notice filed in the state where the witness is located. Counsel should forward the certified copy of the order to local counsel in the other state. The court rules of the state in which the discovery is sought are then followed. Rhode Island has specific rules and procedures governing discovery in Rhode Island for use in proceedings outside Rhode Island. See R.I. Gen. Laws § 9-1811. Similarly, all of the other states have their own specific rules and procedures that must be followed in order for the deposition to be used later at trial in Rhode Island. For example, upon a request to a New Jersey state court, discovery would be conducted using New Jersey court rules regarding the procedure for giving notice, service of the discovery requested, and how and before whom that discovery shall be made. Practice Note As a practical matter, when seeking discovery from a third party in another jurisdiction, unless counsel is also admitted to practice in that state, it is helpful—if not imperative—to retain local counsel in that jurisdiction. Much of this process is governed by the state court rules of the jurisdiction in which you wish to obtain discovery. Thus, local counsel can be an invaluable resource, shepherding you through the discovery rules and court system of that state.

Typically, the jurisdiction where the discovery is to take place requires a petition or a civil action to be filed in that state, and some states require a motion as well. Then, counsel admitted in that state will issue a deposition notice and subpoena to the witness and counsel of record in accordance with that jurisdiction’s rules. For example, in New Jersey, the commissioned local counsel would commence a New Jersey action typically captioned, “In the Matter of the Issuance of a 23–7

§ 23.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Subpoena to [witness].” Under New Jersey Rule of Court 4:11-4, local counsel then requests a court order authorizing the issuance of a deposition subpoena or subpoena duces tecum (subpoena for documents) of the witness. Included as Exhibit 23C is a proposed court order for issuance pursuant to New Jersey Court Rule 4:11-4. Once the court issues its order, the commissioned local counsel may serve a New Jersey subpoena on the witness. See Exhibit 23D. A deposition notice (Exhibit 23E) is also sent to the witness pursuant to the local rules. Practice Note The required procedure, of course, varies from state to state. Although employing local counsel may seem unduly expensive, it is imperative to do so to protect the discovery rights of your client.

§ 23.3

OBTAINING DISCOVERY FROM NONPARTY WITNESSES LOCATED IN FOREIGN COUNTRIES

Obtaining discovery from witnesses in foreign countries raises unique issues because foreign countries are not required to recognize the authority or jurisdiction of Rhode Island courts or any other U.S. state. Rhode Island litigants can obtain discovery of nonparties residing in foreign countries either through the procedures set out in Super. Ct. R. Civ. P. 28(b) and R.I. Gen. Laws § 9-18-5, or through the discovery procedures of Article 3 of the Hague Evidence Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Oct. 7, 1972) (hereinafter “Hague Evidence Convention”). A copy of the Hague Evidence Convention, concluded on March 18, 1970, and effective October 7, 1972, is available on the Web site of the Hague Conference on Private International Law, at http://www.hcch.net.

§ 23.3.1 Obtaining Discovery in Countries Pursuant to the Hague Evidence Convention Rhode Island litigants have the option of seeking discovery pursuant to the Hague Evidence Convention, which was ratified by the U.S. Senate in 1972. It is important to remember, however, that the Hague Evidence Convention is not the only means of obtaining discovery abroad. Indeed, several courts, including the U.S. Supreme Court, have stated that the Hague Evidence Convention is a “permissive supplement, not a pre-emptive replacement” for state discovery rules, Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the Southern Dist. of Iowa, 482 U.S. 522, 536 (1987), and that the Hague Evidence Convention is not the exclusive means or means of first resort for obtaining foreign 23–8

DISCOVERY FROM OUT-OF-STATE WITNESSES

§ 23.3

discovery. See First Am. Corp. v. Price Waterhouse LLP, 154 F.3d 16 (2nd Cir. 1998). However, the practical reality is that the Hague Evidence Convention is frequently used when seeking discovery from foreign nonparties. Cf. In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288 (3rd Cir. 2004) (suggesting U.S. Supreme Court should revisit Aerospatiale decision because courts have not exercised vigilance in protecting foreign litigants). One of the first questions that must be asked when seeking discovery abroad is whether the country in question is a signatory to the Hague Evidence Convention. In addition to the United States, parties to the Hague Evidence Convention as of 2010 include Anguilla, Argentina, Aruba, Australia, Barbados, Bulgaria, Cayman Islands, China, Cyprus, Czech Republic, Denmark, Djibouti, Estonia, Falkland Islands, Finland, France, French Guiana, French Polynesia, Germany, Gibraltar, Guadeloupe, Guernsey, Hong Kong SAR, Isle of Man, Israel, Italy, Jersey, Latvia, Luxembourg, Macao SAR, Martinique, Mexico, Monaco, Netherlands, Norway, Poland, Portugal, Saint Pierre and Miquelon, Singapore, Slovak Republic, Sovereign Base Areas of Akrotiri and Dhekelia, Spain, Sweden, Switzerland, United Kingdom, and Venezuela. See U.S. Department of State, Circular on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Litigation (including notes explaining the assumptions under which various countries are listed as signatories), available at http://travel.state.gov/ law/info/judicial/judicial_689.html. One notable country that is not a signatory to the Hague Evidence Convention is our neighbor to the north, Canada. It may be possible to use the commission procedure described in the previous section to procure discovery in Canada. Rhode Island counsel should consult with Canadian counsel as to the proper procedure to follow. When a Canadian witness is located in the Province of Quebec, counsel faces an additional obstacle—the requirement that all of the discovery documents must be in both English and French. After determining whether the foreign country is a signatory to the Hague Evidence Convention, it is necessary to determine whether the individual country made certain reservations or declarations. For example, some countries will only permit letters of request written in English or depositions upon receipt of written permission of the foreign state. In addition, most countries do not allow for the discovery of documents. Other countries prohibit the taking of depositions altogether or limit the manner in which the deposition is to be conducted. However, some countries have entered into bilateral agreements with the United States that allow for greater flexibility in discovery practices. Once it is determined that the Hague Evidence Convention applies, it is necessary to determine the appropriate discovery procedure to pursue. The Hague

23–9

§ 23.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Evidence Convention provides the following three methods for obtaining evidence abroad: • before a diplomatic officer or consular agent, • before a commissioner appointed by a U.S. federal or state court, or • by means of a letter of request issued by a U.S. federal or state court to a designated foreign authority that can compel foreign witnesses to attend and give evidence. The first two procedures are employed when witnesses voluntarily agree to give discovery; the third method, the letter of request, is used to compel discovery abroad.

(a)

Voluntary Discovery Through Notices or Commissions

When a foreign nonparty is willing to testify voluntarily, Rhode Island litigants who wish to obtain discovery from that person have two options.

Deposition Before Consular Officer The first option is to conduct a deposition before a U.S. consular officer on notice. Chapter II of the Hague Evidence Convention permits the taking of evidence before a consular officer. Chapter II, Article 16, provides that consular officers can preside only over voluntary discovery procedures. In order to prepare for this option in a proper and timely manner, counsel should obtain a copy of the Judicial Assistance Flyer issued by the Department of Justice and available by calling (202) 514-2000, or accessing the Web site at http://travel.state.gov/law/info/judicial/judicial_702.html. After reviewing the flyer, counsel should contact the relevant American embassy or consulate to make the necessary arrangements and then contact the State Department and request that a consular officer preside over the discovery process. If the State Department grants approval, the consular officer will contact the third party and ask that he or she appear for deposition while also informing the third party that he or she may be represented by counsel. See Hague Evidence Convention, Art. 21. If the third party refuses to comply, the consular officer can then ask the foreign authority to assist in the compulsion of evidence from the third party. See Hague Evidence Convention, Art. 18. During the deposition or other discovery process, consular officers are required to follow particular procedures when conducting depositions abroad. Counsel should review these procedures before beginning the deposition. See 22 C.F.R. 23–10

DISCOVERY FROM OUT-OF-STATE WITNESSES

§ 23.3

§ 92.56; see also 22 C.F.R. §§ 92.49–92.71 (relating to procedures, generally, for taking foreign depositions). For example, consular officers are required to ensure that the deposition is transcribed and that the transcription is submitted to the witness for review. Consular officers charge set fees for arranging and presiding over such depositions. As of February 2010, fees include a $475 nonrefundable fixed arrangement fee, plus an hourly deposition fee of $265 plus expenses, and miscellaneous other administrative fees. See U.S. Department of State, Circular on Obtaining Evidence Abroad, available at http://travel.state.gov/law/info/judicial/ judicial_688.html.

Commission The second method for conducting voluntary discovery abroad is with a commission. A commission is written authority, issued by a court or other quasijudicial body, to take the testimony of witnesses who cannot appear personally to be examined by the judicial body issuing the commission. Chapter II of the Hague Evidence Convention permits diplomatic officers or consular agents of the United States (or the relevant requesting country) to be appointed commissioners for the securing of evidence in a foreign country. While no judicial assistance is required to obtain a commission, it is rarely used because it can be time consuming, permission from the foreign state is often needed, and it cannot be used to compel discovery from unwilling witnesses. See Louise Ellen Teitz, Transnational Litigation 184 (Michie 1996). Voluntary depositions can be taken upon oral examination or on written questions. If at some point during the testimony the witness ceases to be cooperative and refuses to testify, counsel may suspend the deposition and seek a letter of request compelling the testimony. Practice Note A Rhode Island attorney should always consult with the U.S. consular office in the foreign country to ensure that voluntary depositions are conducted in accordance with the Hague Evidence Convention’s strictures and local law, because both the consular officer and commission methods may be excluded or limited by a participating nation. Even if the laws of Rhode Island permit the taking of a deposition or conducting certain discovery and the foreign country is a party to the Hague Evidence Convention, the attorney may nevertheless be precluded from obtaining the desired discovery because of local law limitations or reservations to the Convention.

23–11

§ 23.3

(b)

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Involuntary Discovery Through Letters of Request

Letters of request, the third and most common method of discovery under the Hague Evidence Convention, are used to compel testimony of nonparties in foreign countries.

Preparation of Materials To begin the process of issuing a letter of request, Rhode Island litigants must follow the provisions of Super. Ct. R. Civ. P. 28(b)(3). Although labeled a “letter of request,” the submissions are essentially the same as the materials submitted to the court for the issuance of a commission to another state. For example, a Rhode Island litigant seeking discovery from a foreign nonparty should file a motion (or an application) for the issuance of a letter of request. If the motion is assented to by all parties, it should state so. The application should outline the authority under which the Rhode Island court can issue the letter of request and should specify the procedure that the Rhode Island court should follow pursuant to the Hague Evidence Convention. Included as Exhibit 23F is a model of an application for issuance of request for the examination of witness in [country] pursuant to the Hague Convention for taking of evidence abroad. In addition to the application for the issue of a letter of request, counsel must submit the actual letter of request to be signed by the court in which the action is pending. The letter of request must include the following: • “the authority requesting its execution and the authority requested to execute it, if known to the requesting authority”; • “the names and addresses of the parties to the proceedings and their representatives, if any”; • “the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto”; and • “the evidence to be obtained or other judicial act to be performed.” Hague Evidence Convention, Art. 3. In addition, where appropriate, the letter of request should include the following: • “the names and addresses of the persons to be examined”; • “the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined”;

23–12

DISCOVERY FROM OUT-OF-STATE WITNESSES

§ 23.3

• “the documents or other property, real or personal, to be inspected”; • “any requirement that the evidence is to be given on oath or affirmation, and any special form to be used” (if any necessary oath or affirmation is not specified, the foreign authority will take the testimony in accordance with its own laws, which may not require any oath at all or may require an oath or affirmation that may not be acceptable to a Rhode Island court); and • “any special method or procedure to be followed under Article 9.” Hague Evidence Convention, Art. 3. Rule 28(b) of the Superior Court Rules of Civil Procedure provides: A letter of request may be addressed “To the Appropriate Authority in (here name the state, territory, or country).” Evidence obtained in a foreign country in response to a letter of request need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules. Accordingly, under the Rhode Island Superior Court Rules of Civil Procedure, a deposition taken pursuant to a letter of request may not be excluded just because it was taken at variance from Rhode Island law governing depositions. In setting forth questions in a letter of request, the practitioner has the option of stating each question or merely submitting a statement or outline of the subject matter of the questions. The Hague Evidence Convention does not state whether the deponent will have an opportunity to review the questions, but one commentator has interpreted this language to mean that the foreign deponent can be interrogated either through oral questioning or through written interrogatories. If the foreign country interprets the questions submitted with a letter of request as written interrogatories, the “deponent” would obviously be able to see the questions. See Bruno A. Ristau, International Judicial Assistance: Civil and Commercial 252 (Int’l Law Inst. 2000). However, if the practitioner opts to submit a written statement or outline rather than specific questions, the practitioner runs the risk that certain questions will not be asked or understood. The Hague Evidence Convention contains a recommended form of the letter of request, and this form should be followed. See Exhibit 23G (sample letter of 23–13

§ 23.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

request captioned Request for International Judicial Assistance Pursuant to the Hague Convention of 18 March 1970 on Taking of Evidence Abroad in Civil or Commercial Matters). Other sample letters can be found in Bruno A. Ristau, International Judicial Assistance: Civil and Commercial 256–61 & app. C (Int’l Law Inst. 2000). There are a few items to consider in preparing a letter of request that might seem peculiar to an American lawyer. First, if counsel wishes to examine the witness, that request should be addressed in the draft letter of request submitted to the Rhode Island court. Many non–common law countries (such as France and Germany) allow only judges to ask questions of witnesses, with some opportunity for the attorney to supplement the questions either directly or through the judge. Thus, including the attorney’s request to depose the witness is essential. Second, the letter of request should clearly state either the questions to be put to the persons to be examined or a statement of the subject matter about which they are to be examined. In this way, if the judge refuses the request by the attorney to examine the witness, the letter of request will make sure that the judge asks the questions essential to discover the necessary information. A detailed letter of request will ensure that a judge has all of the requisite knowledge to make a complete inquiry of the witness. See 1 Antitrust Trial Practice Handbook Series, Obtaining Discovery Abroad 12–13 (1990). It is also imperative that the letter of request outline the specific discovery procedures sought. This detail is important because foreign countries executing requests under the Hague Evidence Convention will execute the request in accordance with their own local rules and procedures, unless other specific procedures are requested. See Louise Ellen Teitz, Transnational Litigation 193 (Michie 1996). For example, a specific request should be made for the preparation of a complete deposition transcript, which is not the usual practice in many countries. Even if counsel requests that a transcript be made, however, the foreign authority may refuse. Furthermore, under Article 7 of the Hague Evidence Convention, counsel also should request notice of the location and time of the deposition and the identity of the person before whom it will be conducted. The letter of request should be entered by a judge and ordered by a clerk, per the usual procedure in Superior Court in Rhode Island. In addition, many foreign countries require an official stamp or certification to be placed on the letter of request. These procedural specifics vary from country to country. Indeed, certain countries require “triple certification,” which requires that • the judge sign the documents, • the clerk certify that the judge signed the documents, and 23–14

DISCOVERY FROM OUT-OF-STATE WITNESSES

§ 23.3

• the judge certify that the clerk is the clerk. It is therefore necessary to retain foreign counsel to determine the local procedural requirements. It is also advisable to call the Department of Justice at (202) 514-2000 or visit http://travel.state.gov/law/info/judicial/judicial_702.html to determine the country-specific requirements. In addition to the detailed letter of request, it is often a good idea to submit to the Rhode Island court a proposed cover letter to be signed by the Rhode Island court and sent to the foreign court. See Exhibit 23H (sample cover letter). Although not required by the Hague Evidence Convention, the cover letter will serve to introduce the matter to the foreign court. Note that the local rules may, however, dictate other requirements or mandate against the submission of such a letter.

Transmission of the Request Once the Rhode Island court signs and issues the letter of request (and, if appropriate, the cover letter), the letter of request and its attachments must be sent to the appropriate authority or office in the foreign country. There are essentially two methods of transmitting the letter of request to the foreign country: • through the central authority designated by the foreign country or • directly from the Rhode Island court to the foreign court or from a party to the executing tribunal. Each signatory to the Hague Evidence Convention has appointed a “central authority,” to which all such letters of request are to be sent, unless, as discussed below, the letters may be sent directly from one court to another or by a party to the litigation directly to the foreign tribunal. Article 24 of the Hague Evidence Convention authorizes each signatory country to designate additional central authorities. For example, the United Kingdom has appointed central authorities in Scotland and Northern Ireland in addition to its London-based central authority. The Hague Evidence Convention does not allow letters of request to be sent to any diplomatic or consular offices other than the designated central authorities. See Bruno A. Ristau, International Judicial Assistance: Civil and Commercial 244–45 (Int’l Law Inst. 2000). In certain situations, the Hague Evidence Convention allows letters of request to be submitted from court to court or by a party to the litigation directly to the foreign tribunal, bypassing the central authority. Bruno A. Ristau, International Judicial Assistance: Civil and Commercial 246 (Int’l Law Inst. 2000). However, this procedure can be used only when the two countries have a special arrangement 23–15

§ 23.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

that allows this type of direct contact. If a special arrangement is in place, the draft cover letter from the Rhode Island court discussed above (see Exhibit 23H) will be appropriate, and Rhode Island litigants will be permitted to submit the letter of request to both the foreign tribunal (through foreign counsel) and to the central authority. In the absence of a special relationship between the countries, the letters of request must be submitted to the designated central authority. See Bruno A. Ristau, International Judicial Assistance: Civil and Commercial 246–47 (Int’l Law Inst. 2000). When submitting the letter of request directly to a foreign tribunal, the foreign court’s rules of civil procedure must be followed. In most instances, the foreign court will require that foreign counsel file an originating motion, an affidavit of the foreign counsel, a form order, and a subpoena—if relevant. Included as Exhibit 23I are a form originating motion, affidavit of local counsel, a form of order, and a subpoena to give evidence submitted to an Australian court along with a letter of request. Generally, the letter of request is submitted to the central authority or foreign court in duplicate. Although the Hague Evidence Convention does not require duplicates, it is generally a good idea to provide them. The Hague Evidence Convention states that every letter of request must be written or translated into the language of the country in which enforcement is sought. However, this strict requirement is tempered by the fact that several countries have agreed to accept letters of request in either French or English. Nevertheless, not all countries have stated their willingness to accept letters in either of these two languages, and therefore counsel should review and comply with the specific language requirements for the given country. See Bruno A. Ristau, International Judicial Assistance: Civil and Commercial 262–64 (Int’l Law Inst. 2000). Article 5 of the Hague Evidence Convention allows the central authority to object to the letter of request if it does not comply with the provisions of the Convention. While there are numerous objections that the central authority can make, among the most likely objections are the following: • the letter does not emanate from a judicial authority, • the letter does not relate to judicial proceedings, • the letter requires the performance of a judicial act not covered by the Hague Evidence Convention, • the letter does not include the required information,

23–16

DISCOVERY FROM OUT-OF-STATE WITNESSES

§ 23.3

• the execution of the letter would prejudice the sovereignty or security of the foreign state, or • the matter is not a civil or commercial matter. See Hague Evidence Convention, Art. 5; Bruno A. Ristau, International Judicial Assistance: Civil and Commercial 276 (Int’l Law Inst. 2000). Finally, it should also be mentioned that most signatories to the Hague Evidence Convention prohibit or severely limit the discovery of documents. Article 23 permits signatory countries to declare that they will not execute a letter of request for pretrial discovery of documents; most countries have in fact made this declaration. See Bruno A. Ristau, International Judicial Assistance: Civil and Commercial 283, 287 (Int’l Law Inst. 2000). Notable exceptions to this general rule include the United States, Barbados, the Czech Republic, and Israel. See U.S. Department of Justice, Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, available at http://travel.state.gov/law/ info/judicial/judicial_689.html. Practice Note Testimonial privileges of both the host country and the country in which the action is pending can be invoked by a witness or party from whom documents are sought. Article 11(b) recognizes any privilege or duty given to a witness under the law of the state of origin of the letter of request. In addition, Article 11(a) recognizes the privileges under the state of the execution of the letter of request. Thus, a witness may be able to claim the privileges of both the United States and the foreign country.

§ 23.3.2 Obtaining Discovery in Countries Not Signatories to the Hague Evidence Convention When seeking a deposition in a country that is not a signatory to the Hague Evidence Convention, counsel’s authority to request discovery arises from Super. R. Civ. P. 28(b) and R.I. Gen. Laws § 9-18-5, as outlined above. Thus, counsel can proceed on notice where the witness voluntarily participates or seek the issuance of a commission and/or letter of request to take a deposition in a foreign country. In addition to the methods of discovery under Rule 28(b), Rhode Island litigants can stipulate as to the methods of taking depositions “in any manner.” Rule 29 of the Superior Court Rules of Civil Procedure provides as follows: 23–17

§ 23.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

If the parties so stipulate in writing, depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions. Thus, parties to a Rhode Island case may try to stipulate to the manner of taking depositions of foreign nonparties over which the court does not have jurisdiction and when the relevant country is not a signatory to the Hague Evidence Convention. Because Rule 28(b) permits discovery through a commission, parties seeking discovery of foreign witnesses can employ the commission procedures of R.I. Gen. Laws § 9-18-9. After the issuance of a commission by a Rhode Island court, the certified order is transmitted by the State Department either through diplomatic channels (i.e., through consular offices) or directly to the relevant court. However, foreign countries that are not signatories to the Hague Evidence Convention are not required to comply with or even recognize a commission from a U. S. state court. They are also not required to recognize the commission procedure. Nevertheless, many countries will recognize commissions and letters rogatory under the principle of comity. See Louise Ellen Teitz, Transnational Litigation 193–95 (Michie 1996). Practice Note This is a very complicated and convoluted area of procedure, which Rhode Island counsel may have occasion to use once or twice in a legal career, if at all. Consequently, it is extremely important to retain foreign counsel who can assist with the country’s procedural issues, as well as with language and legal custom. Foreign counsel can also provide assistance when negotiating the voluntary appearance of a nonparty witness for a deposition without resorting to the foreign discovery procedures.

§ 23.4

OBTAINING DISCOVERY IN RHODE ISLAND FOR USE IN AN OUT-OF-STATE CASE

Frequently, Rhode Island counsel is called upon to act as local counsel for outof-state counsel to arrange for (and sometimes conduct) the deposition of a Rhode Island person or entity for use in a case pending in another state. Also, Rhode Island counsel may be requested to procure through a subpoena duces tecum and a keeper of the records deposition documents in the care, custody or control of a Rhode Island person or entity that are relevant to a case pending in another state. For instance, a key witness in an employment discrimination case 23–18

DISCOVERY FROM OUT-OF-STATE WITNESSES

§ 23.4

pending in Georgia may now reside in Rhode Island. Or, a plaintiff in a Massachusetts personal injury case may have treated with a medical specialist in Providence, and the defendant in the Massachusetts case now wants to procure the plaintiff’s medical records in the possession of that Providence physician. In such situations, Rhode Island counsel needs to make sure that the attendance of the nonparty witness is properly compelled in Rhode Island and that the deposition can be used in the trial of the case in another state. The taking of depositions in Rhode Island for use in the courts of the other states is governed by R.I. Gen. Laws § 9-18-11. The statute provides as follows: Depositions for use in foreign tribunals Depositions may be taken in this state to be used on the trial of any cause pending in a tribunal of any other state, district, territory, or country, before any person residing in this state, to whom a commission shall be directed and sent by the tribunal, with the formalities prescribed in the commission, or, if there are none prescribed, then according to the laws of the jurisdiction whence the commission issues. R.I. Gen. Laws § 9-18-11. Rhode Island counsel should commence a miscellaneous petition action in Providence County Superior Court titled “In re: Petition of _______ for the Issuance of Subpoena(s).” A sample miscellaneous petition is included as Exhibit 23J. The petition should have attached to it as exhibits copies of any commissions, letters rogatory or other papers from the foreign court that authorize and command the taking of any depositions in Rhode Island. Counsel should keep the original commissions or letters rogatory to present to the hearing judge later. Counsel should file a motion for order to issue subpoena for use in foreign litigation, a sample of is included as Exhibit 23K. The motion should be a formal matter on the regular motion calendar. A proposed order granting the motion and ordering the issuance of a Rhode Island subpoena is included as Exhibit 23L. Once the order is issued, Rhode Island counsel may issue a witness subpoena or a subpoena duces tecum (if appropriate) and a notice of deposition to the nonparty witness in accordance with the requirements of Super. Ct. R. Civ. P. 30 and 45. The certificate of service on the notice of deposition should include all counsel of record in the pending out-of-state action, as well as the deponent. When the out-of-state litigation ends, you can file a notice of voluntary dismissal of the Rhode Island miscellaneous petition action in accordance with Super. Ct. R. Civ. P. 41(a)(1)(i).

23–19

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

23–20

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23A—Motion for Issuance of Commissions HEARING DATE: ____________ STATE OF RHODE ISLAND PROVIDENCE, SC. ______________________, Plaintiff ______________________, Defendant

SUPERIOR COURT | | | | | | |

C.A. No. _________________

__________’S MOTION FOR ISSUANCE OF COMMISSION(S) In accordance with R.I. Gen. Laws § 9-18-9 and Super. Ct. R. Civ. P. 28(b), __________ moves that this Court authorize Commission(s) for the issuance of subpoena(s) in foreign jurisdictions. Upon entry, order(s) authorizing such Commission(s) will be duly filed in the State(s) of __________/Commonwealth of __________ for the purpose of issuing subpoena(s) to compel the appearance of non-party witnesses for deposition. In support of this motion, __________ states as follows: 1.

__________ is a defendant/plaintiff in this action.

2.

[Brief description of litigation; claims or defenses].

3.

[Brief description of identity of person/organization outside the state from whom/which discovery is sought].

4.

[Brief description why such discovery is relevant/necessary; for example, It is believed that information regarding __________ is possessed by __________ (the “Non-Party Deponents”)].

5.

Each of the Non-Party Deponents resides outside the State of Rhode Island, specifically, ________________________________________.

6.

__________ requests that Commissions issue for the purpose of conducting inquiry of each of the Non-Party Deponents with regard to matters relevant to this action.

23–21

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

WHEREFORE, __________ requests that this Court: (a) order the issuance of a Commission to a person duly authorized to administer oaths in the jurisdiction where the deposition(s) will take place; (b) authorize the identified out-of-state court(s) to issue subpoena(s) to compel the depositions of __________; and (c) grant such other and further relief as this Court deems just and appropriate under Rule 28(b). [Moving Party’s Name __________] By Its Attorneys, SHECHTMAN HALPERIN SAVAGE, LLP ______________________________ Randall L. Souza (#4082) 1080 Main Street Pawtucket, RI 02860 Tel: (401) 272-1400 Fax: (401) 272-1403 Email: [email protected] DATED: ______________________ CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion was mailed, postage prepaid, on this ____ day of __________, 20__, addressed to the following: ______________________________

23–22

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23B—Order for Commission to Take Deposition and Issue Out-of-State Subpoena STATE OF RHODE ISLAND PROVIDENCE, SC. ______________________, Plaintiff ______________________, Defendant

SUPERIOR COURT | | | | | | |

C.A. No. _________________

ORDER FOR COMMISSION TO TAKE DEPOSITION AND ISSUE SUBPOENA Upon consideration of __________________________’s Motion for Issuance of Commission(s) under R.I. Gen. Laws § 9-18-9 and Super. Ct. R. Civ. P. 28(b), the motion is GRANTED. This Court orders the issuance of a Commission to a person duly authorized to administer oaths in the jurisdiction where the deposition(s) will take place, and authorizes The [Name of State] Court to issue a subpoena to [Name, City, State], in aid of discovery in the above-captioned case. ENTERED AS AN ORDER OF THIS COURT THIS ______ DAY OF ______________________. ENTER:

BY ORDER:

______________________ Justice of the Superior Court

______________________ Clerk

Presented by: ______________________ Randall L. Souza (#4082) SHECHTMAN HALPERIN SAVAGE, LLP 1080 Main Street Pawtucket, RI 02860 Tel: (401) 272-1400 Fax: (401) 272-1403 Email: [email protected] 23–23

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Counsel for ______________________. DATED: ________________________ CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Order was mailed postage prepaid, on this ____ day of ______________, 20__, addressed to the following: ____________________________

23–24

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23C—Proposed Order Pursuant to New Jersey Court Rule 4:11-4

IN THE MATTER OF THE ISSUANCE OF

X

SUPERIOR COURT OF NEW JERSEY

:

LAW DIVISION

:

MIDDLESEX COUNTY

:

CIVIL ACTION

A SUBPOENA AD TESTIFICANDUM AND : A SUBPOENA DUCES TECUM TO [WITNESS]

: :

DOCKET NO.

: [PLAINTIFF] Plaintiff v. [DEFENDANT]

X

STATE OF

:

RHODE ISLAND

:

____________ COUNTY

:

SUPERIOR COURT

: :

Defendant

:

ORDER PURSUANT TO NEW

X

JERSEY COURT RULE 4:11-4

THIS MATTER having been opened to the Court by [LOCAL COUNSEL OF NEW JERSEY], pursuant to R. 4:11-4, for an order authorizing the issuance of a subpoena duces tecum and of a subpoena ad testificandum to the custodian of records of [WITNESS] for the purpose of taking the deposition of said custodian of records, and for the purpose of securing the production of certain documents, and for good cause shown: IT IS on this ____ day of __________, ____; ORDERED, that a Subpoena ad Testificandum and a Subpoena Duces Tecum shall issue in the name of the Clerk of the Superior Court of New Jersey in the form annexed hereto as Exhibit A; and it is FURTHER ORDERED, that said Subpoena ad Testificandum and a Subpoena Duces Tecum shall be served upon the custodian or keeper of the records of [WITNESS]; and it is FURTHER ORDERED, that the oral deposition of the custodian or keeper of the records of [WITNESS] shall proceed pursuant to the Commission of the Superior Court of the State of Rhode Island; and it is FURTHER ORDERED, that the within Order be served upon all counsel of record within _____ days of the date hereof. ___________________________ 23–25

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

[PLAINTIFF], Plaintiff v. [DEFENDANT], Defendant

: : : : : : : : : : :

SUPERIOR COURT OF NEW JERSEY LAW DIVISION Docket No.

ORDER

Plaintiff having filed a Petition pursuant to R. 4:11–4 for an Order directing the issuance of a Subpoena to take the deposition in _________ of [WITNESS]; and to compel [WITNESS] to produce documents, in connection with an action pending in the State of Rhode Island, and good cause appearing therefor, IT IS on this ___ day of __________ ORDERED as follows: [ATTORNEY/COMMISSIONER] may issue the requested subpoena pursuant to R. 4:14-1. ___________________________

23–26

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23D—Subpoena for Issuance to New Jersey Witness

IN THE MATTER OF THE ISSUANCE OF

X

SUPERIOR COURT OF NEW JERSEY

:

LAW DIVISION

:

COUNTY

:

CIVIL ACTION

A SUBPOENA AD TESTIFICANDUM AND : A SUBPOENA DUCES TECUM TO [WITNESS]

: :

DOCKET NO.

: [PLAINTIFF] Plaintiff v. [DEFENDANT]

X

STATE OF

:

RHODE ISLAND

:

________________ COUNTY

:

SUPERIOR COURT

: :

Defendant

:

[RHODE ISLAND C.A. NO. _________

:

SUBPOENA AD TESTIFICANDUM AND

:

SUBPOENA DUCES TECUM

X

___________________________ To: [WITNESS] Sir: YOU ARE HEREBY COMMANDED to attend and give testimony before the above-named Court on [DATE], in the above entitled action. YOU ARE HEREBY FURTHER COMMANDED to have and bring with you and produce all of the documents set forth in the list annexed hereto as Schedule A. Failure to appear according to the command of this Subpoena will subject you to a penalty, damages in a Civil Suit and punishment for contempt of Court. Date: ____________________

____________________ Superior Court Clerk

23–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

23–28

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23E—Deposition Notice ____________________________________ : [PLAINTIFF], : : Plaintiff : : v. : : [DEFENDANT], : : Defendant. : ____________________________________:

SUPERIOR COURT OF [STATE X] LAW DIVISION

Docket No.

NOTICE OF NONPARTY DEPOSITION

SIRS/MADAMS: PLEASE TAKE NOTICE, that pursuant to the provisions of ____________, the testimony upon oral examinations of [WITNESS] by an officer or director with knowledge shall be taken before a notary public or officer authorized by law to administer oaths who is not an attorney, or an employee of an attorney, for any party or prospective party herein, and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity or affinity to any party herein, at [Address, Date, Time], or on any adjourned date thereof, and continuing from day to day until the examination is concluded. The person to be deposed shall produce at the time and place aforesaid all of the documents set forth on Exhibit A annexed hereto. You are invited to attend and cross-examine. The examination will continue from day to day until completed. Attorneys for Defendant BY: DATED:

23–29

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

23–30

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23F—Application for Issuance of Request for the Examination of Witness Pursuant to the Hague Convention for the Taking of Evidence Abroad STATE OF RHODE ISLAND __________ COUNTY

SUPERIOR COURT CIVIL ACTION NO. ____

[PLAINTIFF], Plaintiff, v. [DEFENDANT], Defendant.

APPLICATION FOR THE ISSUANCE OF A LETTER OF REQUEST FOR THE EXAMINATION OF WITNESS IN [COUNTRY] PURSUANT TO THE HAGUE CONVENTION FOR THE TAKING OF EVIDENCE ABROAD [Plaintiff], by its attorneys, respectfully applies for the issuance by the Court of a Letter of Request in the form attached hereto as Exhibit A, addressed to the Central Authority of [Country], for the examination of [Witness], of [Address]. This Application is made pursuant to, and in conformity with, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, T.I.A.S. 7444, 23 U.S.T. 2555, reprinted in 28 U.S.C.A. § 1781 (“Hague Evidence Convention”), which is in force between the United States and [Country]. Issuance of the Letter of Request under the Hague Evidence Convention is a proper method for the taking of testimony of persons residing abroad. See Super. R. Civ. P. 28(b); see also Philadelphia Gear Corp. v. Am. Pfauter Corp., 100 F.R.D. 58, 60 (E.D. Pa. 1983). Plaintiff hereby applies for a Letter of Request. Plaintiff requests (1) that the Court approve and sign the attached Letter of Request; (2) that the Clerk of this

23–31

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Court authenticate the Court’s signature under the seal of this Court; and (3) that the Clerk then return the Letter of Request to counsel for the Plaintiff. Counsel will transmit the Letter to the Central Authority for [Country] for execution in conformity with Art. 2 of the Hague Evidence Convention. DATED:

Respectfully submitted, [Plaintiff] By its attorneys, ___________________________ [Name and address]

23–32

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23G—Request for International Judicial Assistance Pursuant to the Hague Convention STATE OF RHODE ISLAND ______________ COUNTY

SUPERIOR COURT CIVIL ACTION NO. ____________

[PLAINTIFF], Plaintiff, v. [DEFENDANT], Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE PURSUANT TO THE HAGUE CONVENTION OF 18 MARCH 1970 ON TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS

Sender:

Office of the Clerk [Court and address]

Central Authority of the Requested State:

[Name]

Person to whom the executed request is to be returned:

[Court and address]

In conformity with Article 3 of the Convention, the undersigned applicant has the honor to submit the following request: a.

Requesting judicial authority:

[Court and address]

23–33

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

b. To the competent authority of:

[Foreign Country]

c.

[Plaintiff] v. [Defendant]. Civil Action No. [_____]

Name of case and identifying number:

Names and addresses of the parties and their representatives: a.

Plaintiff:

[Plaintiff] Representatives: [Name(s) and address(es)]

b. Defendant:

[Defendant] Representatives: [Name(s) and address(es)]

Nature and purposes of the proceedings and summary of the facts:

This is a civil action proceeding in the [Rhode Island Court], [_____] County. Plaintiff [Plaintiff] (“[Plaintiff]”) is a [State] corporation with a principal place of business in [City], [State], U.S.A. Defendant [Defendant(s)] (“[Defendant(s)]”), is a [State] corporation with a principal place of business in [State], [Country]. [Nature of the proceedings and summary of the allegations] [Defendant(s)] has denied the substantive allegations in the Complaint and raised several defenses. [Defendant(s)] has counterclaimed against [Plaintiff] alleging [summary of allegations]. Fact Discovery is now ongoing. [Plaintiff] recently determined that it could not obtain all necessary discovery domestically and needs to obtain further information from [Name] for use at trial or other proceedings. By order of the [Court], fact discovery must be completed by [Date]. Trial is

23–34

DISCOVERY FROM OUT-OF-STATE WITNESSES

currently scheduled to commence on or about [Date]. [Describe relevance of witness to the Rhode Island case] Given [Name]’s knowledge of facts relevant to [issue], [Plaintiff] believes that the testimony it will elicit from [Name] will be essential to its presentation at the trial of its claim of [nature of claim]. Evidence to be obtained or other judicial act to be performed.

It is requested that Plaintiff’s counsel be authorized to propound to [Name] questions on the subject matter described in Paragraph 10 below.

Identity and address of any person to be examined:

[Name and address]

Questions to be put to the person to be examined or statement of the subject matter about which he is to be examined:

The deposition of [Name] will cover the following subject matters: [List topics].

Documents or other property to be inspected:

It is requested that [Name] produce and permit inspection and copying of the following documents or objects: Any and all documents concerning any [List topics]

Any requirement that the evidence be given on oath or affirmation and any specific form to be used:

[Name] should be examined under oath or affirmation, and should be instructed of the consequences for the giving of untruthful and false answers under the laws of [Foreign Country].

Special methods or procedure to be followed:

It is requested that: 1. The parties’ representatives or their designees, and a stenographer be permitted to be present during the examination; 23–35

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

2. There be excluded from the examination of [Name], if permitted under [Foreign Country] law, all persons other than the attorneys for the parties, the attorneys for the witness (if any), and the stenographer; 3. A stenographer be permitted to record verbatim the examination of [Name]. Request for notification of the time and place for the execution of the Request and identity and address of any person to be notified:

[Plaintiff] Representatives: [Name(s) and address(es)] [Defendant(s)] Representatives: [Name(s) and address(es)]

Request for attendance or participation of judicial personnel of the requesting authority at the execution of the Letter of Request:

[None]

Specification of privilege or duty to refuse to give evidence under the law of the State of origin:

[Name] may refuse to answer any question propounded only if such answer (1) would subject him to a real and appreciable danger of criminal liability in the United States, or (2) would disclose a confidential communication between him and his attorney.

The fees and costs incurred which are reimbursable under the second paragraph of Article 14 or under Article 26 of the Convention will be borne by:

[Name and address]

Date of Request:

[Date]

Signature and seal of the requesting authority:

Justice of the Rhode Island Superior Court

23–36

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23H—Sample Cover Letter [Date] The Chief Justice Supreme Court of Victoria 210 William Street Melbourne, VIC 3000 Australia Re: Dear Sir: I am the presiding judge in the above-referenced lawsuit pending in the Rhode Island Superior Court in and for __________ County. In the lawsuit, plaintiffs allege that their former employee, defendant and his current employer, have misappropriated alleged trade secrets and confidential information belonging to plaintiff. [Summary of claims.] Defendant and Plaintiffs seek the assistance of the Supreme Court of Victoria in examining certain witnesses resident in Victoria for use at the trial of the above-referenced lawsuit. These proposed witnesses, and their relationship to the issues pending in the lawsuit, are discussed briefly below. Defendant wishes to examine the following witnesses for the following reasons: (1) [List witnesses and reasons why their testimony is needed.] I am persuaded that the above-identified individuals are likely to provide evidence that is relevant to the issues pending in the lawsuit. I therefore endorse plaintiff’s requests to take the examination of the above-mentioned individuals by deposition to be taken down by an examiner, and/or recorded by mechanical means in accordance with Part VI of the Evidence Act 1958 (Vic) in the presence of an examiner, in accordance with the applicable laws and rules of practice in Victoria, and respectfully request that appropriate orders be issued to enable such examinations to go forward as soon as reasonably possible. If you require any additional information regarding this request, please do not hesitate to contact me. Sincerely yours, [Name of judge] 23–37

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

23–38

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23I—Originating Motion and Associated Papers for Filing with Australian Court FORM 5D ORIGINATING MOTION IN THE SUPREME COURT OF VICTORIA AT MELBOURNE No.

of [Year]

IN THE MATTER of an application by [PLAINTIFF] for the examination of a witness in Victoria pursuant to Division 1C of Part I of the Evidence Act 1958 (Vic), in relation to a matter pending before a Court outside Victoria. [PLAINTIFF] Plaintiffs ________________________________________________________________ Date of document

[Date]

Filed on behalf of the plaintiffs Prepared by [Attorney name] [Address] [Phone No.] [Fax No.] ________________________________________________________________ TAKE NOTICE that the plaintiffs will apply to [Court] on [date] at [time] for orders that: 1.

[Witness] be orally examined by Counsel for the parties in the matter of [Plaintiff v. Defendant] currently pending in the [Court] (Civil Action No. __), pursuant to Rule 81 of the Supreme Court (General Civil Procedure) Rules 1996 and Division 1C of Part I of the Evidence Act 1958 (Vic).

23–39

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE No.

of [Year]

2.

The examination take place at [time] on [date] before an Associate of this Honourable Court.

3.

Such further orders or directions that this Honourable Court considers appropriate.

FILED [Date] Prothonotary The address of the plaintiffs is [Address]

23–40

DISCOVERY FROM OUT-OF-STATE WITNESSES

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE No.

of [Year]

IN THE MATTER of an application by the Plaintiff for Orders under Division 1C of Part I of the Evidence Act 1958 for the examination of witnesses in Victoria in relation to a matter pending before a Court in a place out of Victoria. [PLAINTIFF] Plaintiff AFFIDAVIT OF [NAME] ________________________________________________________________ Date of document: [date] Filed on behalf of: the Plaintiff Prepared by: [name] Solicitors [address]

Solicitors Code: DX: Tel: Fax:

________________________________________________________________ On [date], I, [name] of [address] Solicitor, MAKE OATH AND SAY as follows: 1.

I am a solicitor in the sole and permanent employ of [Law Firm] Solicitors, solicitors for the Plaintiff herein (“the firm”). Subject to the supervision of my principals I have the care and conduct of this matter on behalf of the Plaintiff. I am authorised to make this affidavit on behalf of the Plaintiff.

2.

Except where indicated to the contrary I make this affidavit from my own knowledge. Where the context indicates that I do not make this affidavit from my own knowledge, I make it from information supplied to me which I believe to be true and correct.

23–41

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE No.

of [Year]

3.

The firm has been instructed by the United States attorneys for [Defendant], a Defendant in Civil Action No. ___ in the [Rhode Island Court] in the matter of [Plaintiff v. Defendant] to make application to this Honourable Court for Orders enabling residents of the State of Victoria to be examined orally, under oath, by Counsel to the parties in the action pending before the United States Court on matters pertaining to the United States proceeding.

4.

Now produced and shown to me and marked “[Ex. #]” is a letter of request to the Supreme Court of Victoria from the Honourable [Judge], [Rhode Island Court], as well as copies of the Complaint and Amended Answer and Counterclaims in the Rhode Island Action. Now produced and shown to me marked “[Ex. #]” is a true copy of a letter from the [Rhode Island Court] nominating the firm to make the application on behalf of the Plaintiff for the examination of the witnesses referred to in the letters of request.

5.

I humbly request this Honourable Court make the orders sought in the Originating Motion filed herein.

SWORN by the said [Name] at Melbourne in the State of Victoria this [Day] day of [Month], [Year] Before me __________________

23–42

) ) ) )

[Signature]

DISCOVERY FROM OUT-OF-STATE WITNESSES

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE No.

of [Year]

IN THE MATTER of an application by [PLAINTIFF] for the examination of a witness in Victoria pursuant to Division 1C of Part I of the Evidence Act 1958 (Vic), in relation to a matter pending before a court outside Victoria. [PLAINTIFF] Plaintiffs General Form of Order MASTER:

[Name]

DATE MADE:

[Date]

ORIGINATING PROCESS:

Originating Motion

HOW OBTAINED:

On return of the Originating Motion

ATTENDANCE:

[Attorney] the Solicitor for the Plaintiffs. [Attorney] of counsel for

OTHER MATTERS:

Not applicable.

THE COURT ORDERS THAT: 1.

[Witness], [Address] be orally examined before [Attorney] at [time] on [date] by Counsel for the parties in the matter of [Plaintiff v. Defendant] pending in the [Rhode Island Court], (Civil Action No. ___).

2.

The time specified in Rule 41.03(3) of the Supreme Court Rules be amended so that the examiner shall give such notice of the appointment of the place and time of the examination as the examiner considers appropriate.

3.

The examination be conducted at the offices of: [Name of Australian Law Firm], [Address].

23–43

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

4.

This order be authenticated forthwith.

DATE AUTHENTICATED: [Date] IN THE MATTER of an application by [PLAINTIFF] for the examination of a witness in Victoria in relation to a matter pending before a court outside Victoria, pursuant to Division 1C of Part I of the Evidence Act 1958 (Vic).

23–44

DISCOVERY FROM OUT-OF-STATE WITNESSES

SUBPOENA TO GIVE EVIDENCE ________________________________________________________________ Date of document

[Date]

Filed on behalf of the plaintiffs Prepared by [Attorney name] [Address] [Phone No.] [Fax No.] ________________________________________________________________ TO

[Witness]

OF

[Address]

THE COURT ORDERS that you attend for the purpose of giving evidence: (a) before the Supreme Court; (b) at [Address] (c) at [time, day, date] if notice of a later day is given to you by the plaintiffs or by the solicitors for the plaintiffs, the later day, and until you are excused from further attending. FILED Filed by [Attorney], [Address] solicitors for the plaintiffs. NOTE THAT: 1.

if you do not comply with this subpoena you may be arrested;

2.

any question concerning this subpoena should be addressed not to the Court but to the solicitors for the plaintiffs.

23–45

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

23–46

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23J—Miscellaneous Petition for Issuance of Subpoena(s) to Compel Deposition and/or Inspection of Documents for Use in an Out-of-State Action STATE OF RHODE ISLAND PROVIDENCE, SC. IN RE: PETITION OF __________ FOR ISSUANCE OF SUBPOENA(S) (Relative to: __________)

SUPERIOR COURT | | | | | | |

M.P. No. _________

MISCELLANEOUS PETITION OF [__________] FOR ISSUANCE OF SUBPOENA(S) TO COMPEL DEPOSITION AND/OR INSPECTION OF DOCUMENTS FOR USE IN AN OUT-OUT-STATE ACTION Petitioner brings this Petition pursuant to R.I. Gen. Laws § 9-18-11 for the issuance of subpoena(s) to Rhode Island residents for depositions to be used in the action entitled __________ pending in ____________________________________________. 1.

__________ (Petitioner) seeks an Order, pursuant to R.I. Gen. Laws § 9-18-11, authorizing the issuance of a subpoena / subpoena duces tecum to [Name, City, State] (“Non-Party Witness”).

2.

Petitioner is a defendant/plaintiff in a civil action pending in [state court/foreign proceeding] (the “Litigation”).

3.

The Litigation concerns [brief description of Litigation; claims or defenses].

4.

[Identify Non-Party Witness sought for deposition/discovery purposes in Rhode Island and why such discovery is relevant/necessary].

5.

Non-Party Witness is not a party to the Litigation.

6.

Non-Party Witness is a resident of Rhode Island.

7.

Non-Party Witness possesses information and/or documents that are relevant to the Litigation. 23–47

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

8.

Pursuant to R.I. Gen. Laws § 9-18-11, depositions may be taken (and documents may be obtained) in Rhode Island to be used at the trial of any cause pending in a tribunal of any other state, district, territory, or country, before any person residing in Rhode Island, to whom a commission shall be directed and sent by such tribunal, with the formalities prescribed in such commission, or, if there are none prescribed then according to the laws of the jurisdiction where said commission issues.

9.

The discovery sought from the Non-Party Witness has been authorized by the tribunal in which the dispute is pending.

10. Attached hereto as Exhibit(s) A [and ___] is/are Commission(s) / Letter(s) Rogatory issued by ________, authorizing the issuance of a subpoena(s) to [Name, City, State] (and production of documents) by NonParty Witness authorized by the tribunal in which the dispute is pending. WHEREFORE, Petitioner, __________, respectfully requests that the Court enter an Order allowing the issuance of a subpoena compelling the deposition (and production of documents) of [Non-Party Witness], as more fully set forth in the [foreign tribunal authorizations], with the deposition to be conducted in accordance with [foreign jurisdiction] law or under such stipulation as may be adopted by counsel for the parties. ____________________________ By Its Attorneys, SHECHTMAN HALPERIN SAVAGE, LLP ____________________________ Randall L. Souza (#4082) 1080 Main Street Pawtucket, RI 02860 Tel: (401) 272-1400 Fax: (401) 272-1403 Email: [email protected] DATED: ______________ CERTIFICATE OF SERVICE I hereby certify that on the _____ day of ______________, 20__, the foregoing Miscellaneous Petition was mailed, postage prepaid, to the following: [counsel of record in out-of-state action] ____________________________ 23–48

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23K—Motion for Order to Issue Subpoena for Use in Foreign Litigation HEARING DATE: __________ STATE OF RHODE ISLAND PROVIDENCE, SC.

SUPERIOR COURT

IN RE: PETITION OF __________ FOR ISSUANCE OF SUBPOENA(S) (Relative to: __________)

| | | | | | |

M.P. No. _________

MOTION FOR ORDER TO ISSUE SUBPOENA(S) FOR USE IN FOREIGN LITIGATION Now comes the Petitioner, __________ (“Petitioner”), and hereby moves this Court for an Order, pursuant to R.I. Gen. Laws § 9-18-11, allowing the issuance of a subpoena(s) to [__________] (“Non-Party Witness”) for a deposition in Rhode Island (and the production of certain documents at said deposition). In support of its Motion, Petitioner relies upon its Miscellaneous Petition, which is incorporated herein by reference. WHEREFORE, Petitioner, __________, respectfully requests that the Court enter an Order allowing the issuance of a subpoena to __________, for a deposition in Rhode Island as more fully set forth in the Commission / Letter Rogatory submitted with the Petitioner’s Miscellaneous Petition. ____________________________ By Its Attorneys, SHECHTMAN HALPERIN SAVAGE, LLP ____________________________ Randall L. Souza (#4082) 23–49

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

1080 Main Street Pawtucket, RI 02860 Tel: (401) 272-1400 Fax: (401) 272-1403 Email: [email protected] DATED: ______________ CERTIFICATE OF SERVICE I hereby certify that on the _____ day of ______________, 20___, the foregoing Motion was mailed, postage prepaid, to the following: [counsel of record in out-of-state action] ____________________________

23–50

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23L—Proposed Order Issuing Subpoena in Rhode Island for Use in Foreign Litigation STATE OF RHODE ISLAND PROVIDENCE, SC.

SUPERIOR COURT

IN RE: PETITION OF __________ FOR ISSUANCE OF SUBPOENA(S) (Relative to: __________)

| | | | | | |

M.P. No. _________

ORDER This matter was heard on the ___ of __________, 20__, the Honorable __________ presiding, on the Motion of the Petitioner, __________ (“Petitioner”), to issue a subpoena(s) to take a deposition for use in the foreign litigation entitled __________ (“Litigation”), and after consideration thereof, it is hereby: ORDERED, ADJUDGED AND DECREED: That a subpoena may be issued by Petitioner to [Non-Party Witness] for the taking of his/her/its deposition in Rhode Island, consistent with the [authorizations of the foreign jurisdiction, attached to the Miscellaneous Petition as Exhibits A and B, respectively], said deposition to be taken in accordance with the laws of the jurisdiction from which the Commission has issued. ENTER:

BY ORDER:

__________________________ Justice ____________________

____________________ Clerk

Dated: ____________________ ____________________________ By Its Attorneys, SHECHTMAN HALPERIN SAVAGE, LLP

23–51

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

____________________________ Randall L. Souza (#4082) 1080 Main Street Pawtucket, RI 02860 Tel: (401) 272-1400 Fax: (401) 272-1403 Email: [email protected] DATED: ______________ CERTIFICATE OF SERVICE I hereby certify that on the _____ day of ______________, 20___, the foregoing Order was mailed, postage prepaid, to the following: ____________________________

23–52

DISCOVERY FROM OUT-OF-STATE WITNESSES

EXHIBIT 23M—Bibliography David Epstein, Jeffrey L. Snyder & Charles S. Baldwin IV, International Litigation: A Guide to Jurisdiction, Practice and Strategy (Transnational Publishers 3d ed. 2000). Margaret R. Hinkle, Service of Process and the Taking of Depositions Abroad in Massachusetts Lawsuits Involving Foreign Parties, Boston Bar Journal, Jan.– Feb. 1989, at 24. David S. Pennock et al., Obtaining Discovery Abroad (ABA 1990). Bruno A. Ristau, International Judicial Assistance: Civil and Commercial (Int’l Law Inst. 2000). Louise Ellen Teitz, Transnational Litigation (Michie 1996). Houlihan, John A. et al., Massachusetts Discovery Practice (MCLE, Inc. 2002 & Supp. 2005, 2009).

23–53

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

23–54

CHAPTER 24

Discovery Motions and Appeals Kelly M. Fracassa § 24.1

Introduction ........................................................................ 24–1

§ 24.2

Scope of Discovery.............................................................. 24–2

§ 24.3

Grounds and Motions to Limit Discovery........................ 24–3 § 24.3.1

Limitations Within Rule 26(b) ............................ 24–3

§ 24.3.2

Motions for Protective Order .............................. 24–5

§ 24.3.3

§ 24.4

(a)

Rule 26(c) Motions .................................... 24–5

(b)

Rule 30(d) Motions .................................... 24–8

Raising Discovery Objections ............................. 24–8 (a)

Presenting and Preserving Discovery Objections .................................................. 24–9

(b)

Rule 33 Objections to Interrogatories ...... 24–12

(c)

Rule 34 Objections to Requests for Production .......................................... 24–13

Motions to Compel Discovery ......................................... 24–13 § 24.4.1

Motions to Compel Answers to Interrogatories, Production of Documents, Answers at Depositions—Rule 37(a)(2) .......................... 24–14

§ 24.4.2

Motions Resulting from Failure to Comply with Orders Compelling Discovery................... 24–15 (a)

Contempt Motions—Rule 37(b)(1).......... 24–15

(b)

“Other Consequences”—Rule 37(b)(2) ... 24–16

§ 24.4.3

Motions Relating to Requests for Admissions—Rules 36(a) and 37(c) ................. 24–30

§ 24.4.4

Requests for Attorney Fees and Costs............... 24–31 24–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 24.5

§ 24.6

§ 24.7

Miscellaneous Discovery Motions....................................24–33 § 24.5.1

Depositions to Perpetuate Testimony.................24–33

§ 24.5.2

Out-of-State Depositions ...................................24–34

§ 24.5.3

Depositions Which Require Leave of Court ......24–35

§ 24.5.4

Depositions Upon Written Questions.................24–36

§ 24.5.5

Use of Depositions in Court...............................24–36

§ 24.5.6

Interrogatories ....................................................24–37

§ 24.5.7

Requests for Production.....................................24–38

§ 24.5.8

Physical and Mental Examinations of Persons...........................................................24–38

§ 24.5.9

Requests for Admissions....................................24–39

Appellate Review of Discovery Orders............................24–41 § 24.6.1

Direct Appeal or Certiorari ................................24–41

§ 24.6.2

Standard of Review—Or, What Is an “Abuse of Discretion”? ......................................24–43

Drafting Considerations ...................................................24–46 § 24.7.1

Motions to Compel ............................................24–46 (a)

Motions to Compel Answers to Interrogatories and Production of Documents............................................24–46

(b)

Motions to Compel More Responsive Answers to Interrogatories........................24–46

(c)

Motions to Compel Answers at Depositions ...........................................24–47

§ 24.7.2

Motions for Sanctions ........................................24–47

§ 24.7.3

Motions for Protective Orders............................24–48

EXHIBIT 24A—Motion to Shorten Time to Serve Answers to Interrogatories.............................................................................24–49 EXHIBIT 24B—Motion to Compel Answer to Deposition Question ....................................................................24–51 24–ii

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24C—Motion to Compel Answers to Interrogatories............................................................................ 24–53 EXHIBIT 24D—Motion to Compel Attendance at Deposition ................................................................................... 24–55 EXHIBIT 24E—Motion to Compel More Responsive Answers to Interrogatories ............................................................ 24–57 EXHIBIT 24F—Motion to Compel Production of Documents................................................................................... 24–59 EXHIBIT 24G—Motion to Default............................................... 24–61 EXHIBIT 24H—Motion to Dismiss .............................................. 24–63 EXHIBIT 24I—Motion to Determine Sufficiency of Responses to Request for Admissions ....................................... 24–65 EXHIBIT 24J—Motion for Entry of Final Judgment of Dismissal ..................................................................................... 24–67 EXHIBIT 24K—Motion to Take Deposition Less than Thirty Days After Service of Complaint....................................... 24–69 EXHIBIT 24L—Motion to File Request for Production with Response Date of ________ ................................................... 24–71 EXHIBIT 24M—Motion to Propound More than Thirty Interrogatories ................................................................................ 24–73 EXHIBIT 24N—Motion for Protective Order ............................. 24–75 EXHIBIT 24O—Motion to Take Deposition by Telephone......... 24–77

24–iii

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

24–iv

CHAPTER 24

Discovery Motions and Appeals Kelly M. Fracassa

Scope Note This chapter introduces the reader to a variety of motions pertaining to discovery, including motions to limit or compel discovery. The chapter includes discussion of appellate review of discovery orders, and features sections on drafting considerations.

§ 24.1

INTRODUCTION

Rules 26 and 37 of the Superior Court Rules of Civil Procedure govern discovery motions generally, though not exclusively. Rule 26, particularly Rule 26(c), provides the main vehicle to limit discovery through protective orders, while Rule 37 operates to compel discovery or, failing that, impose sanctions for refusing to provide discovery or comply with discovery orders. Other discovery rules require leave of court before a party employs a particular discovery tool or technique. Rule 26, like its federal counterpart, sets forth the general scope of discovery. Disagreements over scope precipitate a good number of the motions discussed in this section. Many others, like motions to compel, often result when opposing counsel misses a deadline due to simple neglect or the inability to obtain information in timely fashion from a client or other sources. Motions to compel discovery often dominate the motion calendars, and the motion justices prefer that counsel try to work out the matter themselves. The discovery rules make this a requirement in many circumstances. For instance, Rules 26(c) and 37(a) and (d) require counsel filing motions pursuant to either Rule to formally certify “that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action . . . .” Super. R. Civ. P. 26(c); see also Super. R. Civ. P. 37(a)(2), 37(d). When fulfilling this requirement, motion justices expect open channels of communication and reasonable efforts to cooperate. This is good advice generally. Requests for reasonable extensions to respond to discovery ought to be granted as a matter of course and courtesy—opposing counsel usually just needs a little more time. Other issues may require judicial intervention. 24–1

§ 24.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Sometimes opposing parties and counsel get unreasonable, and sometimes reasonable people disagree over the scope and limitations of discovery in a particular situation. Rules 26 and 37 provide the primary vehicles for bringing these disputes to the court’s attention. Trial judges often have wide latitude when deciding discovery issues. For this reason, the Rhode Island Supreme Court applies an “abuse of discretion” standard when reviewing discovery orders. This review usually occurs through the filing of a petition for a writ of certiorari due to the interlocutory nature of most discovery orders. Orders and judgments of dismissal or default due to failure to comply with discovery orders may be appealed as of right, provided these orders and judgments terminate all claims as to all parties or the trial judge makes a Rule 54(b) finding.

§ 24.2

SCOPE OF DISCOVERY

The rules relating to discovery usually require counsel to present timely, specific objections to discovery requests. A written objection served on the opposing parties will suffice in some instances, while others require a motion for a protective order. The basis for these objections and the ensuing motions to compel usually exist under Rule 26, unless some statute precludes or limits the disclosure of certain information. The scope of discovery set forth in Rule 26 is rather broad, as a party may obtain discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” which includes “the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . .” Super. R. Civ. P. 26(b)(1). Simply put, “discoverable matter must be both relevant and not privileged.” Fireman’s Fund Ins. Co. v. McAlpine, 120 R.I. 744, 747, 391 A.2d 84, 86 (1978). The term “privileged” “denotes the recognized exclusions found in the law of evidence, such as those related to the attorneyclient or the husband-wife relationship.” Fireman’s Fund Ins. Co. v. McAlpine, 120 R.I. 744, 747, 391 A.2d 84, 86 (1978). Occasionally statutes preclude, limit, or condition the disclosure of certain information. Patient-physician confidentiality created under Chapter 37.3 of Title 5 of the Rhode Island General Laws is a good example. Even then, privileges may give way to other considerations in some circumstances. For instance, a party may obtain discovery of materials otherwise protected by the fact work product privilege by showing a “substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Super. R. Civ. P. 26(b)(3). “Opinion” work product remains sacrosanct. See Super. R. Civ. P. 26(b)(3) (“In ordering discovery of such materials 24–2

DISCOVERY MOTIONS AND APPEALS

§ 24.2

when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”). Relevance under Rule 26(b) is much more expansive than in the evidentiary context as “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Super. R. Civ. P. 26(b)(1); see also DeCarvalho v. Gonsalves, 106 R.I. 620, 627, 262 A.2d 630, 634 (1970) (“The scope of relevancy in discovery proceedings in much broader than when considering the relevancy of evidence adduced at a trial.”). The phrase “subject matter involved in the pending action” expands relevancy beyond “the precise issues presented by the pleadings . . . .” See Borland v. Dunn, 113 R.I. 337, 341, 321 A.2d 96, 99 (1974). In essence, “[t]he key phrase in this definition—‘relevant to the subject matter involved in the pending action’—has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Discovery is not limited to the merits of a case, “for a variety of fact-oriented issues may arise during litigation that are not related to the merits.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (footnote omitted). “‘[T]he court should and ordinarily does interpret “relevant” very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.’ ” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. at 351 n.12 (quoting 4 J. Moore, Federal Practice ¶ 26.56 [1] at 26-131 n.34 (2d ed. 1976)). In contrast, “relevant evidence” in an evidentiary context means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” R.I. Rules of Evidence 401.

§ 24.3

GROUNDS AND MOTIONS TO LIMIT DISCOVERY

§ 24.3.1 Limitations Within Rule 26(b) Aside from privilege and relevancy, Rule 26 also sets limitations on discovery based on practicality and simple fairness. It also provides the means to bring these issues to the attention of the trial court through a motion for protective order. The practical limitations in Rule 26 go to the “frequency or extent of use of the discovery methods set forth in these rules,” which a court may limit if it determines that 24–3

§ 24.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; • the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or • the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, the parties’ resources, and the importance of the issues at stake in the litigation. Super. R. Civ. P. 26(b)(1). A party may ask the court to set limitations through a motion for a protective order filed pursuant to Rule 26(c), or the trial court may do so on its own initiative. See Super. R. Civ. P. 26(b)(1). Many factual circumstances could justify a protective order for the above reasons, and courts have wide latitude when deciding these issues. In essence, they enjoy “‘broad discretion when resolving discovery disputes, which should be exercised by determining the relevance of discovery requests, assessing oppressiveness, and weighing these factors in deciding whether discovery should be compelled.’” Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D. Conn. 2006) (quoting Yancey v. Hooten, 180 F.R.D. 203, 207 (D. Conn. 1998)). A quick aside is in order: The reader will notice many citations to federal case law throughout this chapter. There are several reasons for this. First and foremost, the Rhode Island rules relating to discovery are substantially similar, if not identical, to the federal rules. For this reason, the Rhode Island Supreme Court looks to federal decisions interpreting a particular federal rule of procedure for guidance or interpretation. Henderson v. Newport County Reg’l YMCA, 966 A.2d 1242, 1246 (R.I. 2009) (quoting Crowe Countryside Realty Assocs. Co., LLC v. Novare Eng’rs, Inc., 891 A.2d 838, 840 (R.I. 2006)). Federal decisions thus provide an excellent guide as to how a Rhode Island trial court or the Supreme Court would decide a similar discovery issue. Second, the Rhode Island Supreme Court does not hear an inordinate amount of discovery disputes due to the interlocutory nature of most discovery orders. Trial justices decide the vast majority of these issues and, unlike federal District Court judges and magistrates, often do not have the opportunity to write decisions on discovery issues due to the nature of motion practice before the Superior Court—motions justices often have to handle too many issues in too short a time. There are exceptions, however, and counsel should pay attention to Superior Court decisions published on the Rhode Island judiciary’s Web site. Some of these decisions untangle complicated and occasionally acrimonious discovery disputes and provide a front-line application of the discovery rules. See, e.g., Langley v. Providence Coll., 24–4

DISCOVERY MOTIONS AND APPEALS

§ 24.3

No. PC/2005-5702, 2009 WL 3328496 (R.I. Super. Ct. July 1, 2009), modified by Langley v. Providence Coll., No. PC/2005-5702, 2009 WL 6464282 (R.I. Super. Ct. Sept. 17, 2009); Langley v. Providence Coll., No. P.C. 2005-5702, 2009 R.I. Super. LEXIS 74 (R.I. Super. Ct. July 1, 2009; Sept. 17, 2009).

§ 24.3.2 Motions for Protective Order (a)

Rule 26(c) Motions

A party may present any objections it has to discovery by filing a motion for protective order pursuant to Rule 26(c). This motion may amount to overkill if a party objects to specific interrogatories or requests in a request for production as a written objection served on all other parties may suffice. Objections to an entire set of interrogatories or document request require a protective order before the party propounding the discovery has filed a motion to compel. See Super. R. Civ. P. 37(d). In addition, anyone seeking to prevent or limit inquiry during a deposition must seek a protective order. As noted by one federal court: [u]nlike the procedure with respect to interrogatories, requests for production of documents and requests for admissions, there is no provision in the rules which provides for a party whose deposition is noticed to serve objections so as to be able to avoid providing the requested discovery until an order compelling discovery is issued. While it is indeed good practice to discuss any issues respecting a 30(b)(6) deposition notice with the party which noticed the deposition in an attempt to work out an agreement, in the absence of an agreement, a party cannot decide on its own to ignore the notice. New Eng. Carpenters Health Benefits Fund v. First DataBank, Inc., 242 F.R.D. 164, 165–66 (D. Mass. 2007) (footnotes omitted). Rule 26(c) specifically requires a protective order limiting discovery via deposition, providing that “the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person . . . .” Nothing within Rule 26 allows a party to do so unilaterally. See New Eng. Carpenters Health Benefits Fund v. First DataBank, Inc., 242 F.R.D. at 165. The Rule relating to protective orders provides:

24–5

§ 24.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

[u]pon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. In ruling on a motion for a protective order, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery.

24–6

DISCOVERY MOTIONS AND APPEALS

§ 24.3

The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. Super. R. Civ. P. 26(c). A party seeking a protective order must show “good cause” for the relief sought and present a factual basis. “‘Good cause’ exists when justice requires the protection of ‘a party or person from annoyance, embarrassment, oppression, or undue burden or expense.’” Ferko v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 133 (E.D. Tex. 2003) (quoting Landry v. Air Line Pilots Ass’n, 901 F.2d 404, 435 (5th Cir. 1990)). The moving party has the burden to demonstrate “good cause.” See Ferko v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 133 (E.D. Tex. 2003) (quoting Landry v. Air Line Pilots Ass’n, 901 F.2d 404, 435 (5th Cir. 1990)) (“The burden is upon the movant to prove the necessity of a protective order . . . .”). Establishment of good cause requires the moving party to establish a factual basis. The moving party cannot rely upon “‘stereotyped and conclusory statements,’” or “simply allege a broad need for a protective order so as to avoid general harm,” but must present a “‘particular and specific demonstration of fact,’ as to why a protective order should issue.” Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200, 202 (D. Md. 2006) (quoting in part Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2035 (1994)); see also Flanagan v. Wyndham Int’l, Inc., 231 F.R.D. 98, 102 (D.D.C. 2005). In this respect, presenting an objection through a motion for a protective order is no different than registering and preserving an objection to interrogatories or requests for production—the broad objections typically asserted, such as privilege, irrelevance, undue burden, or overbreadth, must be supported factually. Motions for protective orders under Rule 26(c) generally are considered “rule of court” motions, meaning that they are deemed granted as a matter of course and not placed on the motion calendar unless the opposing party files a timely objection. See Super. R. Civ. P. 7(b)(3)(vii). They also require certification in the body of the motion that the moving party in good faith conferred or attempted to confer with opposing counsel to resolve the issue short of court action. Super. R. Civ. P. 26(c). It is important to remember, however, that motions for protective order requiring an in camera review by the court or that require the court or the clerk to seal certain records are not treated as “rule of court” motions. Such motions require determination by the motion calendar justice, who must make any necessary findings of fact or conclusions of law before ordering the public record sealed.

24–7

§ 24.3

(b)

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Rule 30(d) Motions

Motions under Rule 30(d) of the Superior Court Rules of Civil Procedure relate specifically to depositions. Rule 30(d) “provides further protection for the deponent from harassment and misconduct,” while Rule 26(c) relates more toward relevancy or privilege. See Cunningham v. Heard, 667 A.2d 537, 539 (R.I. 1995) (contrasting Rules 30(d) and 30(b), now Rule 26(c)). The timing of each motion may also differ. A motion under Rule 30(d)(3) may be made “[a]t any time during a deposition,” as counsel may instruct a deponent not to answer a question during a deposition for three specific reasons, including “to present a motion under paragraph (3).” Super. R. Civ. P. 30(d)(1). Motions for protective orders under Rule 26(c) may be made before or during a deposition. Rule 30(d) sets forth grounds for a motion to terminate a deposition in progress “upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party . . . .” Super. R. Civ. P. 30(d)(3). If the objecting party or the deponent feels that such cause exists, demand must be made to terminate the deposition “for the time necessary to make a motion for an order or to obtain a ruling by telephone.” Super. R. Civ. P. 30(d)(3). The motion must be made in the court in which the action is pending or the court in the county where the deposition is being taken. The court “may order the officer or examining attorney conducting the examination to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending.” Super. R. Civ. P. 30(d)(3).

§ 24.3.3 Raising Discovery Objections A party resisting discovery on any ground within Rule 26, including relevancy and privilege, must first lodge a timely objection. When dealing with interrogatories and requests for production, written objections to specific interrogatories and document requests will suffice. A timely and well-founded objection places the burden on the party seeking discovery to file a Rule 37 motion to compel. However, a motion for protective order is the only means by which a party may object to the taking of a deposition, deal with issues that occur while it is taking place, or object to interrogatories or a request for production in toto. Either way, the objecting party must raise the objection in a timely manner and state the grounds for the objection, including the underlying factual basis. Failure to do so may result in a waiver of the objection. The party seeking a protective order has a duty to make a good-faith effort to resolve the dispute by conferring with opposing counsel.

24–8

DISCOVERY MOTIONS AND APPEALS

(a)

§ 24.3

Presenting and Preserving Discovery Objections

Anyone sending out interrogatories or requests for production in Rhode Island will, at some point, receive conclusory objections that read something like, “Objection—work product,” “Objection—overly broad and burdensome,” or “Objection—irrelevant.” Occasionally counsel may receive a discovery response with a preliminary section entitled “General Objections” or something to that effect, that basically state that the party objects to discovery “to the extent that” it violates some privilege or contains some other defect. An objection raised in this manner technically amounts to no objection at all. Conclusory, blanket, boilerplate objections usually will not suffice and should result in a waiver of the objection. Instead, a party must usually support its objections factually. This may even require supporting affidavits. However, the requirement of factual support likely does not apply if a particular discovery request is objectionable on its face, such as an interrogatory asking for advice the client received from counsel concerning the matter in dispute. Something like this is “a no-brainer,” and a conclusory objection such as “Objection—attorney client privilege” will do. Generally, the party resisting discovery bears the burden of demonstrating that the court should sustain its objections. In re Priceline.com Inc. Sec. Litig., 233 F.R.D. 83, 85 (D. Conn. 2005). “‘[P]at, generic, non-specific objections, intoning the same boilerplate language, are inconsistent with both the letter and the spirit of the Federal Rules of Civil Procedure.’” In re Priceline.com Inc. Sec. Litig., 233 F.R.D. 83, 85 (D. Conn. 2005) (quoting Obiajulu v. City of Rochester, 166 F.R.D. 293, 295 (W.D.N.Y. 1996)). Instead, the objecting party must assert a particular objection, such as privilege, overly broad or burdensome, and the like, and support this objection factually. For instance, federal courts rule time and time again that “the ‘mere statement by a party that the interrogatory [or request for production] was “overly broad, burdensome, oppressive and irrelevant” is not adequate to voice a successful objection.’” See, e.g., St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000) (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3rd Cir. 1982)). Instead, the party opposing discovery has the burden to show that the discovery is overly broad, unduly burdensome, or not relevant. Graham v. Casey’s Gen. Stores, 206 F.R.D. 251, 254 (S.D. Ind. 2002). “To meet this burden, the objecting party must ‘specifically detail the reasons why each [request] is irrelevant . . . .’” Graham v. Casey’s Gen. Stores, 206 F.R.D. 251, 254 (S.D. Ind. 2002) (quoting Schaap v. Executive Indus., Inc., 130 F.R.D. 384, 387 (N.D. Ill. 1990)). It must show specifically “‘“how . . . each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive.”’” St. Paul Reinsurance Co., Ltd., 198 F.R.D. at 512 (quoting Josephs v. Harris Corp., 677 F.2d at 992). This may require support by affidavit or other evidence revealing the nature of the burden and why the discovery is objectionable. Wagner v. Dryvit 24–9

§ 24.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Sys., Inc., 208 F.R.D. 606, 610 (D. Neb. 2001). Otherwise, “[i]t is not sufficient to simply state that the discovery is overly broad and burdensome, nor is a claim that answering the discovery will require the objecting party to expend considerable time and effort analyzing ‘huge volumes of documents and information’ a sufficient factual basis for sustaining the objection.” Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 610 (D. Neb. 2001). In line with this, federal courts frown upon hypothetical, blanket objections often asserted “to the extent that” discovery requests might be objectionable. At least one federal court characterized these objections as “worthless for anything beyond delay of the discovery.” Such objections are considered “mere hypothetical or contingent possibilities,” where the objecting party makes “no meaningful effort to show the application of any such theoretical objection to any request for discovery.” Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 538 (D. Kan. 2006) (quoting Sonnino v. Univ. of Kan., 221 F.R.D. 661, 666–67 (D. Kan. 2004)). Importantly, federal courts deem these kinds of objections waived “or decline[ ] to consider them as objections at all.” Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 538 (D. Kan. 2006) (footnote omitted) (citing Sonnino v. Univ. of Kan., 221 F.R.D. at 667). As a bottom line, “a general objection which objects to a discovery request ‘to the extent’ that it asks the responding party to provide certain categories of documents or information is tantamount to asserting no objection at all. In other words, such a general objection does not preserve the asserted challenge to production.” Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 538 (D. Kan. 2006) (footnote omitted) (citing Sonnino v. Univ. of Kan., 221 F.R.D. at 667). Practitioners who rely on such “objections” risk sanctions, including preclusion orders. See Ins. Co. of N. Am. v. Kayser-Roth Corp., 770 A.2d 403, 410–11 (R.I. 2001). Several justices of the Superior Court have applied the same standards utilized by federal courts concerning boilerplate, unsupported discovery objections. In Willis v. Subaru of America, Inc., C.A. No. PC1993-6202 1996 WL 936866 (R.I. Super. Ct. Jan. 9, 1996) (Gibney, J.), the trial justice noted that “[i]t is well settled . . . that bare assertions that discovery requests are overly broad, burdensome, oppressive, or irrelevant are insufficient, standing alone, to bar production; the requested party must clarify and explain how each discovery request so classifies.” Willis v. Subaru of Am., Inc., C.A. No. PC1993-6202 1996 WL 936866, at *7. Citing federal decisions, the same justice ruled in a later case that “[a] party resisting production bears the burden of establishing lack of relevancy or undue burden. . . . Accordingly, that party ‘must show specifically how . . . each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive.’” Long v. Women & Infants Hosp. of R.I., C.A. No. PC2003-0589, 2006 WL 2666198, at *2 (R.I. Super. Ct. Sept. 11, 2006) (Gibney, J.) (citation omitted) (citing Oleson v. Kmart Corp., 175 24–10

DISCOVERY MOTIONS AND APPEALS

§ 24.3

F.R.D. 560, 565 (D. Kan. 1997), and quoting St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. at 512). Another justice, again citing federal decisions, similarly noted that “[t]he ‘mere statement by a party that the interrogatory [or request for production] was “overly broad, burdensome, oppressive and irrelevant” is not adequate to voice a successful objection.’” Cipriani v. Migliori, C.A. No. PC2002-6206, 2005 WL 668368, at *3 (R.I. Super. Ct. Mar. 4, 2005) (Hurst, J.) (quoting St. Paul Reinsurance Co. , Ltd. v. Commercial Fin. Corp., 198 F.R.D. at 511–12). Objections based on privilege also require factual support. Rule 26(b)(5) provides in this regard “[w]hen a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” As with other discovery objections, “[t]he burden of establishing the existence of the attorney-client privilege rests on the party seeking to prevent disclosure of protected information.” Rosati v. Kuzman, 660 A.2d 263, 265 (R.I. 1995). Federal decisions ruling on the sufficiency of privilege objections impose the same burden on the objecting party, including factual support for the objection. “The party invoking the attorney-client privilege or work-product doctrine has the burden of establishing the applicability of such privilege or protection. . . . Mere conclusory or ipse dixit assertions of privilege are insufficient to satisfy this burden.” In re Pfohl Bros. Landfill Litig., 175 F.R.D. 13, 20 (W.D.N.Y. 1997) (citations omitted). Instead, “[w]ork product ‘must be specifically raised and demonstrated rather than asserted in a blanket fashion.’” Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 698 (N.D. Ga. 2007) (quoting Yurick ex rel. Yurick v. Liberty Mut. Ins. Co., 201 F.R.D. 465, 472 (D. Ariz. 2001)). “‘The party asserting the attorney-client privilege or the work product doctrine bears the burden to provide a factual basis for its assertions. This burden is met when the party produces a detailed privilege log stating the basis of the claimed privilege for each document in question, together with an accompanying explanatory affidavit from counsel.’” Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 698 (N.D. Ga. 2007) (quoting Triple Five of Minn., Inc. v. Simon, 212 F.R.D. 523, 528 (D. Minn. 2002)). Put another way, “[t]he party asserting a protection or privilege must not only sufficiently assert the basis therefor, but must also timely produce a privilege log.” Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 235 (E.D.N.Y. 2007). “Failing to include sufficiently descriptive information may result in a finding that the privilege has not been established.” Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 235 (E.D.N.Y. 2007). Just as bad, “failure to 24–11

§ 24.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

timely provide a privilege log may operate as a waiver.” Strauss v. Credit Lyonnais, S.A., 242 F.R.D. at 236. As an example, the plaintiffs in Strauss “generally asserted work product protection. Not only have plaintiffs failed to provide a privilege log, plaintiffs also have failed to demonstrate either that the documents Credit Lyonnais seeks were prepared ‘in anticipation of litigation,’ or that they were prepared by a party’s representative.” Strauss v. Credit Lyonnais, S.A., 242 F.R.D. at 236. Making matters worse, “[f]urther, plaintiffs have failed to explain how any of the documents qualify for work product protection—for example, that certain documents consist of attorney memoranda or notes reflecting legal theories and opinions in anticipation of litigation.” Strauss v. Credit Lyonnais, S.A., 242 F.R.D. at 236. The general rule requiring specific factual support becomes unnecessary if the interrogatory or document request is objectionable on its face. For instance, “a request may be overly broad or unduly burdensome on its face ‘if it is couched in such broad language as to make arduous the task of deciding which of numerous documents may conceivably fall within its scope.’” Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377, 382 (D. Kan. 2005) (footnote omitted) (quoting Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., No. Civ. A. 94-2395-GTV, 1995 WL 625962, at *6 (D. Kan. Oct. 5, 1995)). In that event, “‘[a] party resisting facially overbroad or unduly burdensome discovery need not provide specific, detailed support.’” Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 665 (D. Kan. 1999) (quoting Mackey v. IBP, Inc., 167 F.R.D. 186, 197 (D. Kan. 1996)). Presumably the same exception would apply if a request seeks information obviously protected by the work-product or attorney-client privileges.

(b)

Rule 33 Objections to Interrogatories

Rule 33 governing interrogatories incorporates the above Rules concerning proper presentation and preservation of discovery objections. This Rule provides, in pertinent part, that “[e]ach interrogatory shall be answered separately and fully in writing under oath. If the interrogatory is objected to, the reasons for the objection shall be stated.” Super. R. Civ. P. 33(a). Objections must be served on the party submitting the interrogatories within forty days after service, “unless the court on motion and notice and for good cause shown, enlarges or shortens the time.” Super. R. Civ. P. 33(a). A party may serve objections along with the answers, and “shall answer to the extent the interrogatory is not objectionable.” Super. R. Civ. P. 33(a). However, written objections may be served on the party propounding the interrogatories well before the answers are due. Regardless, counsel should make a point to timely file objections as “[f]ailure to serve such objections within the time prescribed shall constitute a waiver thereof.” Super. R. Civ. P. 33(a). If the parties cannot resolve the objections by 24–12

DISCOVERY MOTIONS AND APPEALS

§ 24.3

themselves, the objecting party may defer answering objected-to interrogatories “until an order to answer is entered in accordance with Rule 37(a) upon motion of the interrogating party.” Super. R. Civ. P. 33(a). If counsel objects to an entire set of interrogatories for reasons other than defects in the individual interrogatories, he or she must move for a protective order under Rule 26(c) before the party propounding the interrogatories moves to compel answers or seeks other relief. See Super. R. Civ. P. 37(d).

(c)

Rule 34 Objections to Requests for Production

In all likelihood, a party objecting to a Rule 34 request for production has a similar duty to file a timely objection. This Rule, like Rule 33(a), sets a general forty-day time limit to produce the documents requested “unless the request is objected to, in which event the reasons for objections shall be stated.” Super. R. Civ. P. 34(b). The objecting party must comply with the portion of the request deemed unobjectionable. The party submitting the request “may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.” Super. R. Civ. P. 34(b). Nowhere in Rule 34 did the drafters specify that untimely objections would be waived. Nevertheless, federal courts rule that the same waiver contained in Fed. R. Civ. P. 33(b)(4) “should be implied into all rules involving the use of the various discovery mechanisms.” See, e.g., Horace Mann Ins. Co. v. Nationwide Mut. Ins. Co., 238 F.R.D. 536, 538 (D. Conn. 2006) (citing various cases). Rhode Island courts would likely read the same requirement into the state rule. If counsel objects to an entire request for reasons other than defects in the individual requests, he or she must move for a protective order under Rule 26(c) before the party propounding the request moves to compel production or seeks other relief. See Super. R. Civ. P. 37(d).

§ 24.4

MOTIONS TO COMPEL DISCOVERY

Rule 37 of the Superior Court Rules of Civil Procedure provides the authority for a party to compel another party or nonparty witness to respond to discovery or to sanction a party or nonparty witness that disobeys court orders or simply refuses to respond altogether. Simple discovery motions usually deal with a party’s failure to respond to interrogatories or a request for production within forty days. In all likelihood, opposing counsel simply needs more time, and requests for extensions should usually be accommodated as a matter of course. Rule 37’s requirement to confer with opposing counsel will often obviate the 24–13

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

need for a court order—simple issues such as additional time to respond or an objection to a specific interrogatory or document request can easily be worked out.

§ 24.4.1 Motions to Compel Answers to Interrogatories, Production of Documents, Answers at Depositions—Rule 37(a)(2) Rule 37(a)(2) provides the initial remedy for a party’s failure to respond to specific interrogatories, document requests, or questions posed at a deposition, either completely or incompletely, or to compel a response after the opposing party or person interposes an objection. The Rule states: If a deponent fails to answer a question propounded or submitted under Rules 30 and 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for production or inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling production or inspection in accordance with the request. Super. R. Civ. P. 37(a)(2). An evasive or incomplete answer or response “is to be treated as a failure to answer or respond.” Super. R. Civ. P. 37(a)(2). This provision typically involves answers to interrogatories, giving rise to a motion to compel more responsive answers. The moving party must file its motion in “the court in which the action is pending or, on matters relating to a deposition, in the county in which the deposition is being taken.” Super. R. Civ. P. 37(a)(1). Motions to compel discovery or more responsive answers to interrogatories “shall specify the number of days for compliance.” Super. R. Civ. P. 7(b)(3). Though not commonly used in practice regarding motions to compel, the order granting a motion to compel “may expressly provide for entry of a final judgment dismissing the underlying claim or entry of a default judgment against the nonmoving party if the order is not complied with within 30 days or such shorter or longer time as the court may order or as the parties may stipulate.” Super. R. Civ. P. 37(a)(4)(A). These orders typically result when the court grants a motion under Rule 37(b)(2), usually conditional orders of default or dismissal. Where 24–14

DISCOVERY MOTIONS AND APPEALS

§ 24.4

the court grants a motion for entry of a final order of default, final judgment will not enter until the question of damages has been tried, pursuant to Rule 54(c) and Rule 58 motion for entry of final judgment by default, either on the trial calendar or on the Formal and Special Cause Calendar if the justice presiding on that calendar so permits. Motions to compel pursuant to Rule 37(a)(2) or (3) are considered “rule of court” motions, meaning that they are deemed granted as a matter of course and not placed on the motion calendar unless the opposing party files a timely objection. See Super. R. Civ. P. 7(b)(3)(vii).

§ 24.4.2 Motions Resulting from Failure to Comply with Orders Compelling Discovery Parties and persons subject to discovery orders occasionally fail to comply. Typically, the party seeking discovery will move to dismiss the case if a defendant or move to default if a plaintiff. Rule 37 provides for this relief, in addition to middle ground relief, as many discovery transgressions do not merit the ultimate sanction.

(a)

Contempt Motions—Rule 37(b)(1)

Rule 37(b)(1) provides that “[i]f a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court, the refusal may be punished as a contempt of court.” By its very terms, this Rule applies to both parties and nonparties. See Gen. Ins. Co. of Am. v. E. Consol. Utils., Inc., 126 F.3d 215, 220 & n.3 (3rd Cir. 1997) (concerning application of Fed. R. Civ. P. 37(b)(1) to nonparties). It applies only to violations of court orders and does not apply when a nonparty fails to attend a deposition pursuant to a lawfully issued subpoena. In that event, the deposing party must resort to contempt proceedings under Rule 45. See Application of Johnson & Johnson, 59 F.R.D. 174, 177 (D. Del. 1973). Rule 37(b)(1) of the Federal Rules of Civil Procedure differs from the state Rule as it applies only to depositions, whereas the Rhode Island counterpart applies if a party or witness refuses “to answer any question after being directed to do so by the court . . . .” Super. R. Civ. P. 37(b)(1). The drafters of the state Rule likely intended the same result, as Rule 37(b)(2) more than adequately deals with the failure of a party “to answer any question,” such as an interrogatory. Issuance and disobedience of a prior court order triggers resort to this Rule.

24–15

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The “contempt” envisioned in Rule 37(b)(1) includes both civil and criminal contempt. See Jones v. La. State Bar Ass’n, 602 F.2d 94, 97 (5th Cir. 1979) (“A citation for criminal contempt is within the District Court’s authority under Fed. R. Civ. P. 37(b)(1) and 37(b)(2)(D).”); see also Andrews v. Holloway, 256 F.R.D. 136, 140 (D.N.J. 2009) (“Civil contempt is a means by which the Court may, if necessary, ensure that its discovery orders are obeyed.”). Although the Rhode Island Supreme Court has not dealt with contempt issues under Rule 37, it would likely apply established rules regarding contempt generally. In this regard, “[t]he establishment of civil contempt requires that clear and convincing evidence demonstrate that an order of the court, sufficiently specific in its directive to the parties, has been violated.” Now Courier, LLC v. Better Carrier Corp., 965 A.2d 429, 434 (R.I. 2009). “Any ambiguities or uncertainties in court orders are read in the light most favorable to the person charged with contempt.” State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 467 (R.I. 2008). This squares with federal case law, as anyone seeking a contempt order under Fed. R. Civ. P. 37(b)(1) must show by clear and convincing evidence “(1) that a valid court order existed; (2) that defendant had knowledge of the order; and (3) that defendant disobeyed the order.” Andrews v. Holloway, 256 F.R.D. at 141. A court should not hold someone in contempt “‘“where there is ground to doubt the wrongfulness of the respondent’s conduct.”’” Andrews v. Holloway, 256 F.R.D. at 141 (quoting A & H Sportswear Co. v. Victoria’s Secret Stores, Inc., 134 F. Supp. 2d 668, 670 (E.D. Pa. 2001)). In addition, “[a]ny ambiguities in the order will be resolved in favor of the party charged with contempt.” Andrews v. Holloway, 256 F.R.D. at 141. Lastly, a contempt order is inappropriate “where a party has taken ‘“all reasonable steps”’ it can take to comply.” 1st Tech., LLC v. Rational Enters. Ltda., No. 2:06-cv-01110-RLH-GWF, 2008 WL 4571057, at *5 (D. Nev. July 29, 2008).

(b)

“Other Consequences”—Rule 37(b)(2)

Rule 37(b)(2) applies specifically when a party fails to comply with a discovery order and provides a trial court with a “smorgasbord of sanctions” to deal with the situation. Senn v. Surgidev Corp., 641 A.2d 1311, 1318 (R.I. 1994). This “smorgasbord” may be served up either before or during trial. Unlike motions to compel under Rule 37(a)(2), Rule 37(b)(2) motions do not require the moving party to confer with opposing counsel before filing the motion and are not “rule of court” motions. Rule 37(b)(2) provides: If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) to testify on behalf of a party fails or refuses to obey an order to provide or permit discovery, including an 24–16

DISCOVERY MOTIONS AND APPEALS

§ 24.4

order made under subdivision (a) of this rule or Rule 35, the court may make such orders and enter such judgment in regard to the failure or refusal as are just, and among others the following: (A) An order that the matters regarding which the order was made, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or a final judgment dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (E) Where a party has failed to comply with an order under Rule 35(a) requiring the party to produce another for examination, such orders as are listed in subdivisions (A), (B), and (C) of this subdivision of this rule, unless the party failing to comply shows that the party is unable to produce such person for examination. Super. R. Civ. P. 37(b)(2). By its plain wording, Rule 37(b)(2) only applies if a party “fails or refuses to obey an order to provide or permit discovery . . . .” This usually means that the opposing party failed to answer interrogatories or produce documents after entry of an order granting a motion to compel. All Rhode Island attorneys familiar with motion practice know this dance: the opposing party misses the deadline to respond to interrogatories and a request for production. A thirty- or forty-fiveday order enters, depending if the opposing party files an objection and/or talks 24–17

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

to the moving party. For some reason, the opposing party still fails to send over answers to interrogatories or the documents sought within the period specified in the order. Counsel then moves for a conditional order of default or dismissal, usually asking for a thirty-day conditional order. Sometimes not even that does the trick. However, motion justices do not consider conditional orders selfexecuting, requiring the moving party to file another motion, this time for entry of final default or dismissal. If the opposing party responds to discovery in the interim, odds are the motion will be denied, although some trial judges might award an attorney fee for counsel’s troubles. This “dance” takes several months to play out, resulting in delays that are next to impossible to explain to frustrated clients. The bar nevertheless continues to perpetuate this practice by routinely filing and acceding to conditional orders of dismissal or default as an intermediate level sanction, presumably either as a matter of courtesy to opposing counsel and/or to avoid running afoul of an abuse-of-discretion determination from the Supreme Court in the event of an interlocutory appeal. See Senn v. Surgidev Corp., 641 A.2d 1311, 1318 (R.I. 1994). This procedure, cumbersome though it may be, also applies when a party partially disobeys a court order or disobeys one targeted toward specific discovery requests. In that event, the “smorgasbord” provided by Rule 37 allows counsel to tailor motions for sanctions to the offense at hand. “Sanctions” is defined broadly to include orders precluding a party from introducing certain evidence or witnesses, contesting certain facts, or asserting or contesting claims or defenses, as the case may be.

Rule 37(b)(2)(A)—Taking Facts as Established This subsection allows the trial court to enter “[a]n order that the matters regarding which the order was made, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order[.]” Super. R. Civ. P. 37(b)(2)(A). Counsel should resort to this Rule when the opposing party disobeys a court order to answer certain interrogatories, produce particular documents, or even produce witnesses for depositions pertaining to identifiable factual issues that the party propounding discovery seeks to prove. A party may request this sanction either before or during trial, and the sanction may include unfavorable jury instructions. For instance, a trial court may properly instruct the jury to take certain facts as true or presume that evidence a party failed to produce in discovery was unfavorable to that party. See, e.g., Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1182 (10th Cir. 1999); Hilao v. Estate of Marcos, 103 F.3d 762, 764–65 (9th Cir. 1996). Similarly, a party’s failure to produce a witness for a deposition could result in an instruction to the jury to 24–18

DISCOVERY MOTIONS AND APPEALS

§ 24.4

assume that the party’s testimony would have been unfavorable. Smith v. Kmart Corp., 177 F.3d 19, 28 (1st Cir. 1999). Depending on the facts the trial court takes as established, the effect of a Rule 37(b)(2)(A) sanction may run from harmless to devastating. It may even result in a final default on liability or dismissal. See Knowlton v. Teltrust Phones, Inc., 189 F.3d at 1182 n.6. Judgment awards on that basis “are ‘the most severe penalty,’ and are authorized only in ‘extreme circumstances.’” Commodity Futures Trading Comm’n v. Noble Metals Int’l, Inc., 67 F.3d 766, 770–71 (9th Cir. 1995) (quoting United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603 & n.5 (9th Cir. 1988)).

Rule 37(b)(2)(B)—Prohibition on Supporting or Opposing Claims and Defenses or Introducing Matters in Evidence Rule 37(b)(2)(B) allows the trial court to enter “[a]n order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence.” For instance, a Rule 37(b)(2)(B) motion would be in order if a party fails to respond to discovery targeted at the factual basis for affirmative defenses raised in its answer or various claims raised in its complaint. Failure of a corporate defendant to produce a particular witness for a deposition concerning a certain topic may also result in a preclusion order. Rule 37(b)(2)(B) may also apply when a party fails to respond to discovery intended to support the claims or defenses of the party propounding the discovery. “Designated matters” may include anything from facts to witnesses. In this respect, Rule 37(b)(2)(B) acts as the flip-side of Rule 37(b)(2)(A) by operating to preclude facts as opposed to establish them. Ins. Co. of N. Am. v. Kayser-Roth Corp., 770 A.2d 403 (R.I. 2001), provides a good example how this Rule applies. In Kayser-Roth, one of the parties repeatedly refused to answer interrogatories related to its “other insurance” defense. See Ins. Co. of N. Am. v. Kayser-Roth Corp., 770 A.2d at 410–11. The trial justice entered a preclusion order, noting that the failure to respond “materially interfered with Kayser-Roth’s ability to prepare for trial and the court’s ability to simplify the issues for trial.” Ins. Co. of N. Am. v. Kayser-Roth Corp., 770 A.2d at 411. The Supreme Court praised the trial justice’s efforts to tailor the sanction to the circumstances: The trial justice noted that “this preclusion order [was] the least harsh it could craft considering the consequences to Kayser-Roth of First State’s failings.” The preclusion order was tailored to preclude First State from introducing only the evidence that it 24–19

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

repeatedly had refused to provide to opposing counsel so that opposing counsel could properly prepare for trial. Furthermore, the preclusion order did not prevent First State “from making a purely legal argument, in the context of this litigation, that it should be entitled to setoff, allocation, or reduction in judgment amount because of other carrier’s liability to pay a particular amount of damages.” Accordingly, the trial justice’s sanction was appropriate. Ins. Co. of N. Am. v. Kayser-Roth Corp., 770 A.2d at 412. The reference to “designated matters” includes witnesses. Trial courts occasionally order witness preclusion when a party fails to update answers to interrogatories as required by Rule 33(c), which provides: If the party furnishing answers to interrogatories subsequently shall obtain information which renders such answers incomplete or incorrect, amended answers shall be served within a reasonable time thereafter but not later than 30 days prior to the day fixed for trial. Thereafter amendments may be allowed only on motion and upon such terms as the court may direct. The primary purpose underlying Rule 33(c) “‘is to enable litigants to prepare for trial free from * * * surprise * * * so that [the] judgment[ ] can rest upon the merits of the case rather than the skill and maneuvering of counsel.’” Montecalvo v. Mandarelli, 682 A.2d 918, 927 (R.I. 1996) (ellipses and bracketed substitutions in original) (quoting Gormley v. Vartian, 121 R.I. 770, 775, 403 A.2d 256, 259 (1979)). Rule 37 sets forth the consequences for violation of this Rule, see Int’l Depository, Inc. v. State, 603 A.2d 1119, 1124 (R.I. 1992), although it is not clear whether Rule 37(b)(2)(B) applies or Rule 37(d). A prior version of Rule 37(d) explicitly provided for sanctions for violating Rule 33(c), see Int’l Depository, Inc. v. State, 603 A.2d at 1124 (quoting prior version), but the current version does not. Sanctions within Rule 37(b)(2)(B) include an order barring a party from presenting witnesses. See Smith v. Sch. Reform Bd. of Trustees, 165 F.3d 1142, 1145 (7th Cir. 1999) (“The judge’s order barring the school system from presenting witnesses is the sort of sanction contemplated by Rule 37(b)(2)(B)[.]”). However, resort to sanctions under Rule 37(b)(2) requires a violation of a prior court order, whereas the failure to update answers to interrogatories may not implicate a prior order at all. Rule 37(d) allows for sanctions available under Rule 37(b)(2)(B), among others “as are just,” but applies only when a party completely fails to answer any interrogatories. See Super. R. Civ. P. 37(d); see also Garden City Boxing Club, Inc. v. Izarraraz, No. 2:07-cv-0156324–20

DISCOVERY MOTIONS AND APPEALS

§ 24.4

RHL-GWF, 2008 WL 5351681, at *2 (D. Nev. Dec. 18, 2008) (“Sanctions under [Fed. R. Civ. P. 37(d)], however, are limited to situations in which there is a complete failure to respond to interrogatories or requests for production or where the response is so evasive or misleading as to constitute no response at all.” (emphasis added)). A party may fail to amend only one interrogatory, namely that which asks for persons with knowledge of the facts of the case. Citation to either Rule will likely pass muster given that Rule 37(d) incorporates sanctions available in Rule 37(b)(2)(B). When applying either Rule, a trial justice has the discretion, depending on the circumstances, to preclude testimony from witnesses not previously identified in answers to interrogatories. See Montecalvo v. Mandarelli, 682 A.2d at 918. “It is equally clear, however, that forbidding a party to call a witness is a drastic sanction that should be imposed only if it is apparent that the violation has or will result in prejudice to the party asserting the violation.” Gormley v. Vartian, 121 R.I. 770, 775, 403 A.2d 256, 259 (1979). The Supreme Court upheld several trial court rulings excluding witnesses from testifying and found an abuse of discretion in others. It also expressed approval when trial justices crafted their orders to the situation at hand. The underlying concern is to prevent undue prejudice resulting from surprise. See Narragansett Elec. Co. v. Carbone, 898 A.2d 87, 95 (R.I. 2006). For example, the trial court properly exercised its discretion by excluding testimony in Gormley v. Vartian, where the plaintiff failed for a considerable period of time before trial to identify a known witness who would have supported part of his case in chief. Worse yet, the plaintiff conceded that failure to supply this witness’s identity “was simply an oversight.” See Gormley v. Vartian, 121 R.I. at 775–76, 403 A.2d at 259. Exclusion of witnesses was similarly upheld in International Depository, Inc. v. State, 603 A.2d 1119, 1124 (R.I. 1992), where the state failed to update answers to interrogatories despite ample opportunity to prepare for trial. See Int’l Depository, Inc. v. State, 603 A.2d at 1124. “[T]he record,” the court stated, “indicates a lack of diligence regarding compliance with the civil rules. The hardship that [the plaintiff] would have suffered had the case been passed to permit discovery must be considered.” Int’l Depository, Inc. v. State, 603 A.2d at 1124. In contrast, no prejudice or surprise existed in Smith v. DeFusco, 107 R.I. 392, 397–98, 267 A.2d 725, 729 (1970), where the plaintiff simply misspelled the names to two potential witnesses already known to the defendant. Although the plaintiff in Narragansett Electric Co. v. Carbone, 898 A.2d 87, 95 (R.I. 2006), failed to identify a particular expert in its answers to interrogatories, the Supreme Court upheld a finding of no resulting prejudice where the defendants had this witness’s affidavit, took his pretrial deposition, and had documents containing much of the information the witness would use during his testimony. See Narragansett Elec. Co. v. Carbone, 898 A.2d at 95–96. Similarly, failure to reveal 24–21

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

a physician as an expert likely to testify resulted in no prejudice where the defense already knew that this physician treated the plaintiff for his injuries and previously subpoenaed his records. See Castellucci v. Battista, 847 A.2d 243, 251–52 (R.I. 2004). Other rulings show that the trial justice should tailor the discovery sanction to the circumstances. Counsel for the moving party should do so as well. For instance, a plaintiff who fails to identify a witness intended to testify in its case in chief may appropriately risk exclusion of this witness, but cannot be precluded from having this witness testify in rebuttal where the defense introduced evidence “of a new and relevant part in his defense . . . .” See McGonagle v. Souliere, 113 R.I. 683, 689, 324 A.2d 667, 670 (1974) (citing Souza v. United Elec. Ry., 49 R.I. 430, 143 A. 780 (1928)). In Montecalvo v. Mandarelli, 682 A.2d 918, 927 (R.I. 1996), the court upheld preclusion of a witness from testifying to certain facts but not others where the trial justice “closely tailored the cut of his preclusive sanction to the girth of the underlying discovery offense.” Montecalvo v. Mandarelli, 682 A.2d at 927.

Rule 37(b)(2)(D)—Contempt Rule 37(b)(2)(D) permits, “[i]n lieu of any of the foregoing orders or in addition thereto, an order treating as contempt of court the failure to obey any orders except an order to submit to a physical or mental examination[.]” This Rule is rarely resorted to in practice, probably because other subsections of Rules 37(b)(2) and (d) more than adequately address recalcitrant conduct and provide sufficient remedies. Contempt, however, may provide a good impetus to compel a party to attend a deposition if the threat of incarceration looms. See The Cadle Co. v. Valdez, No. 96 Civ. 7373(LMM), 2008 WL 1959528, at *1 (S.D.N.Y. May 5, 2008) (Concerning failure to give a deposition, “[a] person in contempt may be incarcerated in the endeavor to obtain compliance with court orders enforcing discovery rules.”). The Supreme Court has not had the opportunity to apply this subsection. It stands to reason, however, that the same analysis set forth above regarding Rule 37(b)(1) applies to Rule 37(b)(2)(D), the only difference being that the latter Rule applies only to parties. For this reason, Rule 37(b)(2)(D) and not Rule 37(b)(1) applies if an officer, director, shareholder, or managing agent of a corporate party refuses to comply with a discovery order. See 1st Tech., LLC v. Rational Enters. Ltda., 2008 WL 4571057, at *7 (citing Elec. Workers Pension Trust Fund of Local Union # 58, IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373 (6th Cir. 2003); see also Super. R. Civ. P. 37(b)(2) (“If a party or an officer, director, or managing agent of a party or a person designated under rule 30(b)(6)

24–22

DISCOVERY MOTIONS AND APPEALS

§ 24.4

to testify on behalf of a party fails or refuses to obey an order to provide or permit discovery . . . .”).

Default and Dismissal—Rule 37(b)(2)(C) This subsection of Rule 37(b)(2) provides for the most severe sanction within the “smorgasbord,” namely “[a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or a final judgment dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” Super. R. Civ. P. 37(b)(2)(C). Proper resort to this Rule requires persistent refusal, defiance, or bad faith as to noncompliance with discovery orders. See Flanagan v. Blair, 882 A.2d 569, 573 (R.I. 2005) (quoting Travelers Ins. Co. v. Builders Res. Corp., 785 A.2d 568, 569 (R.I. 2001)). Another requirement, unstated by the Rhode Island Supreme Court but voiced by federal courts, is prejudice to the moving party’s ability to present its case due to the other side’s refusal to provide discovery. Consequently, the “smorgasbord” of sanctions available under Rule 37(b)(2) likely requires resort to lesser sanctions depending on the discovery the other side fails to produce. The Tenth Circuit noted that discretion to impose a sanction “is limited by the requirement that the sanction be both ‘“just”’ and ‘“related to the particular claim which was at issue.”’” Knowlton v. Teltrust Phones, Inc., 189 F.3d at 1182 (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 920–21 (10th Cir. 1992)). Basically, “[t]he choice of sanction should be guided by the “concept of proportionality” between offense and sanction.” Moore v. Chertoff, 255 F.R.D. 10, 31 (D.D.C. 2008) (quoting Bonds v. Dist. of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996)). Put differently, “[t]he sanction imposed must be fair and tailored to the issue raised by discovery order.” Card Tech. Corp. v. DataCard Inc., 249 F.R.D. 567, 571 (D. Minn. 2008). Federal courts have devised broad rules to help implement this “concept of proportionality.” None runs contrary to those promulgated by the Rhode Island Supreme Court, which, to date, has not had occasion to discuss this subject in any great depth. These broad rules are basically variants of the same theme. For instance, the Sixth Circuit Court of Appeals directs trial courts to consider four factors when determining the appropriate sanction, namely (1) whether the party’s failure to cooperate in discovery is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the party’s failure to cooperate in discovery; (3) whether the party was warned that failure to cooperate could lead

24–23

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

to the sanction; and (4) whether less drastic sanctions were first imposed or considered. Chao v. Oriental Forest IV, Inc., No. 1:07-cv-618, 2009 WL 152108, at *2 (W.D. Mich. Jan. 21, 2009) (citing Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997)). Federal courts in the District of Columbia must consider three basic justifications that support the use of more severe sanctions, namely (1) a determination that “the errant party’s behavior has severely hampered the other party’s ability to present his case”; (2) “the prejudice caused to the judicial system where the party’s misconduct has put an intolerable burden on a district court by requiring the court to modify its own docket and operations in order to accommodate delay”; and (3) “the need to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.” Klayman v. Judicial Watch, Inc., Civ. A. No. 06-670 (CKK), 2009 WL 1797857, at *9 (D.D.C. June 25, 2009) (quoting Perez v. Berhanu, 583 F. Supp. 2d 87, 90– 91 (D.D.C. 2008)). The Ninth Circuit applies a similar set of rules, requiring a trial court to weigh five factors before imposing the harshest sanctions of dismissal or default judgment, namely “‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.’” Henry v. Gill Industries, 983 F.2d 943, 948 (9th Cir. 1993) (quoted in Garden City Boxing Club, Inc. v. Izarraraz, 2008 WL 5351681, at *3). The Rhode Island Supreme Court noted in this regard that “[n]othing in Rule 37(b)(2) states or suggests that that sanction can only be imposed after the court has considered or tried other less severe sanctions.” Flanagan v. Blair, 882 A.2d at 573. This certainly makes sense as some discovery violations, in particular an outright refusal to respond to any discovery, clearly merit the ultimate sanction. Federal courts similarly rule that trial courts are not required to exhaust lesser sanctions before resorting to more severe sanctions, although they must explain their reasons for ordering the latter. See, e.g., Klayman v. Judicial Watch, Inc., 2009 WL 1797857, at *9 (quoting Webb v. Dist. of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998)). The Ninth Circuit similarly holds that “it is not always necessary for the court to impose less severe sanctions first, or to give any explicit warning of the dismissal sanction in order for the sanction of dismissal to be proper.” Garden City Boxing Club, Inc. v. Izarraraz, 2008 WL 5351681, at *4 (citing Valley Eng’rs, Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)). 24–24

DISCOVERY MOTIONS AND APPEALS

§ 24.4

However, a trial judge may and should consider a lesser sanction if it better fits the circumstances. If a trial judge chooses a sanction from the “smorgasbord” that he or she believes most appropriate for the situation in question, the Supreme Court will probably not reverse for abuse of discretion. See Margadonna v. Otis Elevator Co., 542 A.2d 232, 233 (R.I. 1988) (concerning sanctions available under prior version of Rule 37(d)). The trial justice in Insurance Co. of N. America v. Kayser-Roth Corp., 770 A.2d 403 (R.I. 2001), did exactly that when entering a preclusion order “tailored” to preclude a party “from introducing only the evidence that it repeatedly had refused to provide to opposing counsel so that opposing counsel could properly prepare for trial.” Insurance Co. of N. Am. v. Kayser-Roth Corp., 770 A.2d at 412. Significantly, the trial justice in Kayser-Roth also pointed to the material interference that the refusal to provide discovery caused to the opposing party’s ability to prepare for trial. Insurance Co. of N. Am. v. Kayser-Roth Corp., 770 A.2d at 411. Synthesizing the above rules shows that prejudice to the party propounding the discovery and the opposing party’s conduct constitute the most important considerations when choosing whether to seek dismissal, default, or some lesser sanction. Prejudice in this context exists if the opposing party’s actions impair the discovering party’s “ability to go to trial or threaten the rightful decision of the case,” with the latter consideration considered the most critical. Garden City Boxing Club, Inc. v. Izarraraz, 2008 WL 5351681, at *3, *4 (citing Henry v. Gill Industries, 983 F.2d 943 949 (9th Cir. 1993), and quoting Valley Eng’rs, Inc. v. Elec. Eng’g Co., 158 F.3d at 1057–58). For instance, “‘[d]ismissal is appropriate where a “pattern of deception and discovery abuse made it impossible” for the district court to conduct a trial “with any reasonable assurance that the truth would be available.”’” Garden City Boxing Club, Inc. v. Izarraraz, 2008 WL 5351681, at *4 (quoting Valley Eng’rs, Inc. v. Elec. Eng’g Co., 158 F.3d at 1057–58). Willfulness plays an important part when deciding whether to impose this sanction. A party acts “willfully if it engaged in ‘disobedient conduct not shown to be outside of the control of the litigant.’” L. Tarango Trucking v. County of Contra Costa, 202 F.R.D. 614, 620 (N.D. Cal. 2001) (quoting Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985)); see Fairfield Financial Mtg. Group v. Luca, No. CV06-5962 (JS) (WDW), 2008 WL 5001105, at *6 (E.D.N.Y. Nov. 19, 2008) (quoting Ocello v. City of New York, No. CV-05-3725, 2008 WL 789857, at *5 (E.D.N.Y. Mar. 21, 2008)). “‘Disobedient conduct’ connotes deliberate malfeasance, rather than mere inadvertence.” L. Tarango Trucking v. County of Contra Costa, 202 F.R.D. at 620. “Bad faith” in this context, which is an alternate to willfulness, “‘does not require actual ill will; substantial and prejudicial obduracy may constitute bad faith.’” Moore v. Chertoff, 255 F.R.D. at 35 (quoting Ajaxo Inc. v. Bank of Am. Tech. & Operations, Inc., No. CIV-S-07-0945, 2008 WL 5101451, at *2 (E.D. Cal. Dec. 2, 2008)). However, 24–25

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

the Rhode Island Supreme Court has shown leniency when a pro se litigant mixed negligence with apparent willfulness. In Carroccio v. DeRobbio, 108 R.I. 234, 274 A.2d 424 (1971), the court reversed the dismissal of the plaintiff’s action for his failure to appear at a deposition because he thought, mistakenly, that a formal order had to enter obligating him to do so. See Carroccio v. DeRobbio, 108 R.I. at 236, 274 A.2d at 425–26. In this respect, the court observed that “[t]he plaintiff’s failure to attend the deposition was not caused by a willful intent but by a mistaken belief of law.” Carroccio v. DeRobbio, 108 R.I. at 238, 274 A.2d at 427. This is not to say that negligence as opposed to willfulness will excuse noncompliance with prior discovery orders. Sanctions “can be imposed if defendants failed to produce the documents ‘without substantial justification,’” as “‘sanctions may be imposed even for negligent failures to provide discovery.’” L. Tarango Trucking v. County of Contra Costa, 202 F.R.D. at 620 (quoting Fed. R. Civ. P. 37(c)(1), and Fjelstad v. Am. Honda Motor Co., 762 F.2d at 1343). Decisions of the Rhode Island Supreme Court concerning dismissal or default for noncompliance with discovery orders focus more on the offending party’s conduct rather than prejudice to the party seeking discovery. The court may have simply presumed prejudice in each case given the discovery violations at issue, nearly all of which involve a complete failure to respond to valid discovery requests. Given that prejudice resulting from a discovery violation constitutes part of the standard for lesser discovery breaches, such as the failure to update answers to interrogatories, counsel may rest assured that the court would not reject prejudice as a consideration when deciding whether a particular violation merits dismissal or default. Nevertheless, a persistent refusal to comply with discovery orders seems to be the touchstone in Supreme Court decisions dealing with this issue. In Flanagan v. Blair, 882 A.2d 569, 573 (R.I. 2005), the trial justice dismissed the plaintiff’s complaint against one of the parties where the plaintiff had no justifiable excuse for failing to provide discovery after missing the deadline set in a conditional order of dismissal. See Flanagan v. Blair, 882 A.2d at 572. Failure to timely comply with an explicit and clear order constitutes “defiance” in this circumstance. Flanagan v. Blair, 882 A.2d at 573. In Mumford v. Lewiss, 681 A.2d 914 (R.I. 1996), the court agreed that persistent refusal to abide by discovery orders existed when the plaintiff failed to provide requested information despite two motions to compel, an extension agreed to by defendant, and an extension afforded by the conditional order of dismissal. The court labeled this behavior “‘noncompliant and dilatory.’” See Mumford v. Lewiss, 681 A.2d at 916 (quoting in part Providence Gas Co. v. Biltmore Hotel Operating Co., 119 R.I. 108, 114, 376 A.2d 334, 337 (1977)). The plaintiff in Burns v. Connecticut Mut. Life Ins. Co., 743 A.2d 566 (R.I. 2000), produced requested documents outside the time permitted in a conditional order of dismissal. See Burns v. Connecticut Mut. Life 24–26

DISCOVERY MOTIONS AND APPEALS

§ 24.4

Ins. Co., 743 A.2d at 568. While trial justices often refuse to dismiss a case or default a party in this circumstance, the plaintiff in Burns, at the time representing himself pro se, made the unfortunate choice to lie to the trial court as to the availability of the documents he ultimately produced through counsel. The court agreed with the trial justice that the plaintiff “persistently and flagrantly ignored the court’s order to produce documents and compounded the misconduct by making obvious misrepresentations to the court to avoid dismissal because of his noncompliance with the court’s order.” Burns v. Connecticut Mut. Life Ins. Co., 743 A.2d at 568. Providing patently insufficient answers to interrogatories after expiration of a conditional order may also result in dismissal or default. See Providence Gas Co. v. Biltmore Hotel Operating Co., 119 R.I. 108, 113, 376 A.2d 334, 336–37 (1977). The court observed in Bosler v. Sugarman, 440 A.2d 129, 132 (R.I. 1982), that “[t]here are few cases in which a defendant has shown more complete defiance of court orders than in the case at bar” where the defendant failed to produce financial records after an order compelling their production and a denial of a stay of this order, all issued on the eve of trial. Even after entry of default, the defendant sought to quash a subpoena issued for the same documents he had been ordered to produce. See Bosler v. Sugarman, 440 A.2d at 131. After expressing its clear displeasure with the defendant’s conduct, the court ruled that “the persistent refusal of defendant to make discovery in defiance of court orders would have justified [entry of default] in this case.” Bosler v. Sugarman, 440 A.2d at 132. The court, however, does not always rule that the trial court properly imposed the ultimate sanction. The convoluted situation in Senn v. Surgidev Corp., 641 A.2d 1311, 1318 (R.I. 1994), provides a good example. In Senn, the trial court granted the plaintiff’s motion for default judgment and contempt that was filed after a series of discovery disputes that had resulted in an agreed upon conditional default. It was the plaintiff’s contention, and the trial justice found, that the defendant’s responses to the plaintiff’s discovery requests were inadequate. Noting that the defendant actually had responded to the discovery requests at least in part but without deciding the question of its full compliance, the Supreme Court found the trial justice abused her discretion in granting the plaintiff’s motion. The Supreme Court observed, “In the circumstances of this case, we do not see the same level of persistent refusal or defiance or bad faith on which this court has in the past grounded its affirmance of the most severe discovery sanctions. We therefore conclude that the trial justice abused her discretion in granting plaintiff’s motion for a default judgment.” Senn v. Surgidev Corp., 641 A.2d at 1319. Notably, the Supreme Court went on to approve the trial justice’s previous orders having to do with the manner in which the defendant was required to respond to the plaintiff’s discovery requests and ordered the defendant to “achieve full compliance with the trial justice’s order entered April 30, 1992, within sixty days of the date of this opinion” or risk further sanctions. Senn v. Surgidev Corp., 24–27

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

641 A.2d at 1321. The court found that “the purposes of the Rules of Civil Procedure, the interests of the parties, and the interests of the judicial system are better served by permitting the parties to address the merits of the claims and defenses asserted in the lawsuit rather than allowing an escalated discovery conflict effectively to close the courthouse doors.” Senn v. Surgidev Corp., 641 A.2d at 1319. Incidentally, the court provided a comprehensive review of its prior decisions concerning dismissals and defaults for violations of discovery orders.

A Curious Hybrid—Rule 37(d) Rule 37(d) provides in pertinent part: If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraph (A), (B) and (C) subdivision (b)(2) of this rule. A motion under this Rule usually requires the same certification as a motion to compel under Rule 37(a)(2), namely that “the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action.” This certification is not required if the motion pertains to the other party’s or its designate’s failure to appear for a deposition. See Super. R. Civ. P. 37(d) (only applies to “causes (2) and (3) of this subdivision . . . .”). As with motions filed under Rules 37(a)(2), (3) or 37(b)(2), “in lieu of any order or in addition thereto, the court may require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” Super. R. Civ. P. 37(d). This Rule has very broad reach and, as discussed above, applies only when a party has completely failed to respond to interrogatories, a request for production, or a deposition notice. See Garden City Boxing Club, Inc. v. Izarraraz, 2008 WL 5351681, at *2 (“Sanctions under [Fed. R. Civ. P. 37(d)], however, are

24–28

DISCOVERY MOTIONS AND APPEALS

§ 24.4

limited to situations in which there is a complete failure to respond to interrogatories or requests for production or where the response is so evasive or misleading as to constitute no response at all.”). Unlike Rule 37(b)(2), a party may resort to sanctions available under Rule 37(d) without a prior court order compelling discovery. This may lead to some confusion in light of Rule 37(a)(2) concerning simple motions to compel since most of these are filed in response to the “complete failure” of a party to answer interrogatories or respond to a request for production. Rule 37(d) applies in that circumstance, not Rule 37(a)(2). The latter Rule, by its plain wording, allows for motions to compel if, for example, “a party fails to answer an interrogatory,” not the whole set. Rule 37(d) allows a party to seek the sanctions available under Rule 37(b)(2), none of which provides for motion to compel, without a prior violation of a discovery order. This seems to render nugatory the requirement of violation of a prior discovery order as a precondition to file a motion under Rule 37(b)(2). All is not as it seems. Rule 37(d) allows the trial court to “make such orders in regard to the failure as are just,” including but not limited to action authorized under Rule 37(b)(2)(A) through (C) (emphasis added). Orders “in regard to the failure as are just” affords trial judges “wide discretion to enforce its discovery orders,” Travelers Ins. Co. v. Builders Res. Corp., 785 A.2d 568, 569 (R.I. 2001), and incorporates the concept of proportionality where “‘any sanctions must be proportional to the underlying offense.’” Moore v. Chertoff, 255 F.R.D. at 31 (quoting Banks v. Office of the Senate Sergeant at Arms, 241 F.R.D. 370, 372 (D.D.C. 2007)). Absent extraordinary circumstances, missing a deadline to answer interrogatories early in the case does not warrant dismissal or an order striking pleadings. The ability to grant a simple motion to compel under Rule 37(d) arises from the court’s ability to enter orders “in regard to the failure as are just.” Discretion under Rule 37(d) also runs to the other end of the spectrum, dealing with situations where an initial failure to meet a discovery deadline merits an extreme sanction. For example, a party may make it abundantly clear before anyone has had any opportunity to apply for an order that it has no intention of responding discovery. Failure to respond to discovery requests served shortly before trial, such as supplemental interrogatories or a deposition, may not allow sufficient time for the usual “dance” mentioned above. In that event, the party seeking discovery needs a sanction imposed as soon as possible to avoid prejudice when presenting its case. Discovery propounded shortly before trial, however, may be objectionable due to its timing alone or for some other reason. In that event, Rule 37(d) requires the party objecting to the entire discovery request to seek a protective order before the party propounding the discovery files a motion under this Rule— 24–29

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

counsel may not simply file written objections pursuant to Rules 33(a) or 34(b). Rule 37(d) states in this regard that “[t]he failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c).” Simply put, if counsel believes that the entire request is objectionable, he or she should immediately seek a protective order.

§ 24.4.3 Motions Relating to Requests for Admissions— Rules 36(a) and 37(c) Rule 37(c) relates to requests for admissions, specifically the failure to admit the genuineness of certain documents or the truth of a particular matter. If the requesting party “thereafter proves the genuineness of the document or the truth of the matter the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making such proof, including reasonable attorney’s fees.” This Rule usually applies posttrial although not in a hard and fast manner. The trial court “shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit.” Although use of the word “shall” “mandates an award of expenses unless the court finds that an exception applies,” Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1555 (10th Cir. 1996), a trial court has substantial discretion when applying these exceptions. Federal case law must be consulted when exploring these exceptions as the Rhode Island Supreme Court has not had occasion to interpret and apply them. Rule 36(a) provides little guidance beyond stating that the request must concern “the truth of any matters within the scope of Rule 26(b) . . . .” In this regard, that “the matter to be admitted is neither admissible nor likely to lead to admissible evidence is legitimate grounds for objection . . . .” Nat’l Semiconductor Corp. v. Ramtron Int’l Corp., 265 F. Supp. 2d 71, 74 (D.D.C. 2003). Lack of substantial importance relates to whether the admission sought and denied “is material to the disposition of the case.” S.E.C. v. Happ, 392 F.3d 12, 34 (1st Cir. 2004). The “reasonable grounds to believe” standard ameliorates the potentially harsh consequences of denying requests for admissions over disputed issues and then losing at trial. While Rule 36 allows litigants to request admissions as to the ultimate facts of a case as well as applications of law to fact, In re Carney, 258 F.3d 415, 419 (5th Cir. 2001), requests should not be employed “to establish facts which are obviously in dispute or to answer questions of law,” Kosta v. Connolly, 709 F. Supp. 592, 594 (E.D. Pa. 1989). In a similar vein, an adverse verdict does 24–30

DISCOVERY MOTIONS AND APPEALS

§ 24.4

not automatically justify an award of expenses under Rule 37(c). Caruthers v. Procter & Gamble Mfg. Co., 177 F.R.D. 667, 669 (D. Kan.), aff’d, 161 F.3d 17 (10th Cir. 1998). “‘[T]he true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail.’” S.E.C. v. Happ, 392 F.3d at 34 (quoting Fed. R. Civ. P. 37 Advisory Committee Notes, 1970 Amendment). A finding that the jury could have found either way on a particular issue may suffice. See Buzz Off Insect Shield, LLC v. S.C. Johnson & Son, Inc., 606 F. Supp. 2d 571, 593–94 (M.D.N.C. 2009). For example, a “hard fought battle between the parties at trial” may persuade the trial court to exercise its discretion and find that the losing party could have reasonably believed that it would prevail. See, e.g., Valentine v. Equifax Info. Servs. LLC, 543 F. Supp. 2d 1232, 1237 (D. Or. 2008). The “other good reason” standard amounts to a catch-all, allowing a trial court substantial discretion to deny posttrial motion for sanctions. For instance, a court may consider “the good faith actions of the respondent” when deciding whether “other good reason” exists. See Long v. Howard Univ., 561 F. Supp. 2d 85, 94 (D.D.C. 2008). Defects in the request itself may suffice. See Long v. Howard Univ., 561 F. Supp. 2d at 94, 96. While most grounds for a motion under Rule 37(c) arise posttrial, the party seeking admissions may move to determine the sufficiency of responses and objections pursuant to Rule 36(a). “Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this Rule, it may order either that the matter is admitted or that an amended answer be served.” Super. R. Civ. P. 36(a). Regardless, the requesting party has the burden to move for an order to test the validity of the objection. Russo v. Baxter Healthcare Corp., 51 F. Supp. 2d 70, 78 (D.R.I. 1999). Attorney fees and costs awarded through a motion under Rule 37(c) consist of those incurred to prove the facts or documents in the admission sought. They do not include costs incurred to prosecute the motion. House v. Giant of Md. LLC, 232 F.R.D. 257, 261 (E.D. Va. 2005).

§ 24.4.4 Requests for Attorney Fees and Costs Several sections of Rule 37 permit counsel to seek attorney fees and costs as a sanction for discovery violations. For example, a party moving to compel under Rule 37(a)(2) may seek “reasonable expenses incurred in making the motion, including attorney’s fees,” provided the moving party first made a good-faith effort to obtain the disclosure or discovery without court action. The trial court should deny sanctions if the “nondisclosure, response, or objection was substantially 24–31

§ 24.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

justified, or that other circumstances make an award of expenses unjust.” Super. R. Civ. P. 37(a)(4)(A). The moving party may end up paying sanctions under this Rule if the motion is denied, “unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.” It may also enter an appropriate protective order pursuant to Rule 26(c). Super. R. Civ. P. 37(a)(4)(B). The same standards exist when a motion to compel is granted in part and denied in part. See Super. R. Civ. P. 37(a)(4)(C). A party seeking a protective order may seek an award of fees and costs under this Rule. See Super. R. Civ. P. 26(c) (“The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.”). Sanctions in the form of reimbursement of attorney fees and costs are available, but not mandatory, when a party seeks relief under Rule 37(b)(2) for violation of a prior discovery order. In lieu of or in addition to any order entered under Rule 37(b)(2), the trial court “may require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” A motion for sanctions under Rule 37(b)(2) does not require a good-faith effort to resolve the issue prior to seeking relief. The moving party may also seek reimbursement of costs and attorney fees under Rule 37(d), “unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” These provisions do not mean that a request for costs and attorney fees ought to accompany every motion to compel or even motions for conditional orders of default or dismissal. First, an award of fees and costs is discretionary with the trial court. See Super. R. Civ. P. 37, 1995 Committee Notes (observing that the 1995 amendment uses the discretionary “may” as opposed to “shall” in the corresponding federal Rule). Second, the sanction of ordering payment of expenses under Rule 37(a) has in practice been reserved for outrageous conduct. Senn v. Surgidev Corp., 641 A.2d at 1320 (quoting Super. R. Civ. P. 37 Reporter’s Notes). Outrageous conduct involves bad faith, which can be established by showing that a party’s uncooperativeness in granting the opposing party’s clear legal rights “‘necessitated resort to legal action with all the expense and delay entailed in litigation.’” Senn v. Surgidev Corp., 641 A.2d at 1320 (quoting Limoges v. Eats Rest., 621 A.2d 188, 190 (R.I. 1993)). In essence, Rule 37 “is designed to penalize those whose conduct may be deemed to warrant a sanction and deter those who may be tempted to engage in improper conduct.” Fremming v. Tansey, 626 A.2d 219, 221 (R.I. 1993). Conversely, “indiscriminate punishment will have a chilling influence on effective advocacy.” Freming v. Tansey, 626 A.2d 219, 221 (R.I. 1993). In this regard, the Supreme Court will find an abuse of discretion when a trial court awards sanctions where opposing counsel’s 24–32

DISCOVERY MOTIONS AND APPEALS

§ 24.4

opposition to a motion compelling discovery was substantially justified, though unavailing, and the counsel’s or the party’s conduct was not outrageous or reflective of bad faith. Senn v. Surgidev Corp., 641 A.2d at 1320. Federal courts hold that a party meets the “substantially justified” standard “when there is a ‘genuine dispute’ or if ‘reasonable people could differ’ as to the appropriateness of the motion.” Peterson v. Hantman, 227 F.R.D. 13, 16 (D.D.C. 2005) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The Rhode Island Superior Court Web site publishes most current written decisions from the Superior Court, including those having to do with awards of costs and sanctions in discovery matters.

§ 24.5

MISCELLANEOUS DISCOVERY MOTIONS

While the “bookend” Rules 26 and 37 generate the most discovery motions, other rules provide for motions relating to discovery in certain situations.

§ 24.5.1 Depositions to Perpetuate Testimony Rule 27 allows a party to take depositions either before trial or pending appeal to perpetuate testimony. Rule 27(a), concerning presuit depositions, incorporates R.I. Gen. Laws § 9-18-12, which permits depositions “as well before as after litigation is commenced . . . .” See Super. R. Civ. P. 27 Reporter’s Notes (“Rule 27(a) departs from the Federal model to incorporate G.L. 1956, § 9-18-12.”); see also R.I. Gen. Laws § 9-18-12 (Westlaw 2009). It should be noted that these depositions are evidentiary in nature and not discovery devises per the plain language of the Rule. Rule 27(a) concerning depositions taken before the action relates only to “[t]he perpetuation of testimony regarding any matter which may be cognizable in this court . . . .” See also Travelers Ins. Co. v. Hindle, 748 A.2d 256, 261 (R.I. 2000) (concerning preaction deposition under R.I. Gen. Laws § 9-18-12). Similarly, Rule 27(b) concerning depositions during the pendency of an appeal allows for “the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in this court.” It may not be used, for example, posttrial to determine whether a party has a cause of action against another potential defendant. See Myles v. Women & Infants Hosp., 504 A.2d 452, 455 (R.I. 1986). Anyone seeking to take a deposition before trial must file a petition in Superior Court under R.I. Gen. Laws § 9-18-12, which provides:

24–33

§ 24.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Any person, desirous of perpetuating the testimony of any witness concerning any matter which is or may be the subject of litigation, as well before as after litigation is commenced, may present a petition in writing to any justice of the supreme or superior or family court, or to any justice of a district court, setting forth the reasons of his or her application, the name of the witness or witnesses, the subject matter of the controversy, and the names of all persons known to be interested therein, and praying that the deposition of the witness or witnesses may be taken; and thereupon if the justice be satisfied of the reasonableness of the petition, he or she shall designate some notary public or standing master in chancery to take the deposition, to whom the petition, with the order of designation thereon, shall be sent. A postappeal deposition requires a motion under Rule 26(b) “upon the same notice and service thereof as if the action was pending in this court.” The motion must show “(1) the names and addresses of persons to be examined and the substance of the testimony which the party expects to elicit from each; (2) the reasons for perpetuating their testimony.” If the court finds that perpetuation of testimony is proper to avoid failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in this court. Super. R. Civ. P. 27(b).

§ 24.5.2 Out-of-State Depositions Anyone seeking to depose a witness in another state must apply to the trial court for a “letter of request” or “letters rogatory” to the appropriate judicial authority in the jurisdiction in which the deposition will be taken. “A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable

24–34

DISCOVERY MOTIONS AND APPEALS

§ 24.5

or inconvenient; and both a commission and a letter of request may be issued in proper cases.” Super. R. Civ. P. 28(b).

§ 24.5.3 Depositions Which Require Leave of Court Depositions typically do not require prior court permission. See Super. R. Civ. P. 30(a)(1) (“Any party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except as provided in paragraph (2).”). Leave of court is required if the person to be examined is confined in prison or if, without the written stipulation of the parties, (A) the person to be examined already has been deposed in the case; or (B) a plaintiff seeks to take a deposition prior to the expiration of 30 days after service of process on any defendant or the filing of a waiver of service, except that leave is not required (1) if a defendant has served notice of taking deposition or otherwise sought discovery, or (2) if the notice served by a plaintiff contains a certification, with supporting facts, that the person to be examined is expected to leave the State of Rhode Island and be unavailable for examination in this State unless deposed before that time. Depositions taken by means other than sound, sound and visual, or stenographic means require court permission. See Super. R. Civ. P. 30(b)(2). For example, a deposition by telephone may only occur with leave of court if opposing parties will not stipulate to that effect. See Super. R. Civ. P. 30(b)(7). Requests to exclude certain persons from attending the deposition may be done by motion, see Super. R. Civ. P. 30(c), as may requests to limit the time for a deposition, Super. R. Civ. P. 30(b)(2). The latter Rule provides that: the court may limit the time permitted for the conduct of a deposition, but shall allow additional time consistent with Rule 26(b)(1) if needed for a fair examination of the deponent or if the deponent or another party impedes or delays the examination. If the court finds such an impediment, delay, or other conduct that has frustrated the fair examination of the deponent, it

24–35

§ 24.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof. Rule 30(d)(3) motions were discussed in § 24.3.2, above. Rule 30(g) provides for sanctions in the form of attorney fees and costs if deponents fail to appear: If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by the party and the party’s attorney in so attending, including reasonable attorney’s fees. (2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by the other party and that party's attorney in so attending, including reasonable attorney’s fees.

§ 24.5.4 Depositions Upon Written Questions Depositions upon written questions may be taken with leave of court “if the person to be examined is confined in prison, or if, without the written stipulation of the parties, the person to be examined has already been deposed in the case.” Super. R. Civ. P. 31(a)(1), (2).

§ 24.5.5 Use of Depositions in Court Rule 32 specifies the kinds of depositions that may be used in court in lieu of live testimony. Only one subdivision requires leave of court, providing that

24–36

DISCOVERY MOTIONS AND APPEALS

§ 24.5

[t]he deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. A deposition of a medical witness or any witness called as an expert, other than a party, which has been recorded by videotape by written stipulation of the parties or pursuant to an order of court may be used at trial for any purpose whether or not the witness is available to testify. Super. R. Civ. P. 32(a)(3)(E). Use of a deposition in court pursuant to this Rule may be suppressed upon motion “made with reasonable promptness after such defect is, or with due diligence might have been, ascertained,” due to “[e]rrors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 . . . .” Such errors are waived absent a timely motion to suppress. Super. R. Civ. P. 32(e)(4).

§ 24.5.6 Interrogatories Interrogatories may be propounded without court permission. However, “if service is made by the plaintiff within 60 days after service of process upon the defendant, leave of court granted with our without notice must first be obtained.” Super. R. Civ. P. 33(a). Leave of court is also required if the party serving interrogatories wants them answered in less than forty days, or if the party answering them wishes to enlarge the time beyond forty days. In either event, the moving party must show “good cause.” Super. R. Civ. P. 33(a). Any party seeking to propound more than thirty interrogatories must obtain court approval, again “for good cause shown.” Super. R. Civ. P. 33(b). A party may need leave of court to propound “contention interrogatories,” namely those that “call[ ] for an answer which involves an opinion or contention that relates to fact, or to the application of law to fact . . . .” Super. R. Civ. P. 33(b). However, the party served with contention interrogatories must move for a protective order “that such an interrogatory need not be answered until after 24–37

§ 24.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

other designated discovery has been completed or at some other later time.” Super. R. Civ. P. 33(b). A party has a continuing duty to update its answers to interrogatories and must do so “not later than 30 days prior to the day fixed for trial.” The court may allow amendments thereafter “only on motion and upon such terms as the court may direct.” Super. R. Civ. P. 33(c).

§ 24.5.7 Requests for Production As with interrogatories, the court may shorten or lengthen the usual forty-day period to produce documents pursuant to a request for production. Super. R. Civ. P. 34(b). The same “good cause” standard in Rule 33(a) likely applies, although Rule 34 does not specify any standard.

§ 24.5.8 Physical and Mental Examinations of Persons Rule 35(a) provides: When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The “good cause” and “in controversy” requirements, the two conditions precedents to ordering an exam, “‘are not met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.’” Raymond v. Raymond, 105 R.I. 380, 385, 252 A.2d 345, 348 (1969) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)). In addition, “the phrase ‘in controversy’ contemplates that a determination of the merits of an issue in the case within which the motion for physical or mental 24–38

DISCOVERY MOTIONS AND APPEALS

§ 24.5

examination is made, may turn on, or be directly affected, by the physical or mental condition of the party sought to be examined.” Raymond v. Raymond, 105 R.I. 380, 385, 252 A.2d 345, 348 (1969). Put another way, granting a motion for physical and mental examination, “where the result of such an examination would not help resolve an issue in controversy in the case within which the motion was made, would constitute an abuse of discretion . . . .” Raymond v. Raymond, 105 R.I. at 387, 252 A.2d at 350. Rule 35 requires the party causing the examination to be made to provide upon request a copy of “a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition.” Super. R. Civ. P. 35(b)(1). After delivery, the party seeking the examination may request, and will then be entitled to, “a like report of any examination, previously or thereafter made of the same condition, unless, in the case of a report of examination of a person not a party, the party show that the party is unable to obtain it.” The trial court may require delivery of this report “on such terms as are just,” and may exclude the examiner’s testimony if the report is not provided. Super. R. Civ. P. 35(b)(1). Rules 37(b)(2)(A) through (C) apply concerning sanctions for a party’s failure to comply with an order under Rule 35(a) to submit to an examination.

§ 24.5.9 Requests for Admissions Any matter admitted pursuant to a Rule 36 request for admissions “is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Super. R. Civ. P. 36(b). The trial court may permit withdrawal or amendment of an admission “when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the party’s action or defense on the merits.” Super. R. Civ. P. 36(b). When applying this standard, the Rhode Island Supreme Court has ruled that an admission that has been conclusively established may be withdrawn only “(1) if the admitting litigant has acted diligently; (2) if adherence to the admission might cause a suppression of the truth; and (3) if the withdrawal can be made without prejudice to the party who made the request.” . . . In re McBurney Law Servs., Inc., 798 A.2d 877, 883 (R.I. 2002) (quoting Kelley v. K & H Realty Trust, 717 A.2d 646, 648 (R.I. 1998)). 24–39

§ 24.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The corresponding federal Rule is substantially similar. “‘The first half of the test in Rule 36(b) is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case.’” Conlon v. United States, 474 F.3d 616, 622 (9th Cir. 2007) (quoting Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995)). It “‘emphasizes the importance of having the actions resolved on the merits.’ . . . .” Perez v. Miami-Dade County, 297 F.3d 1255, 1266 (11th Cir. 2002) (citation omitted) (quoting Smith v. First Nat’l Bank of Atlanta, 837 F.2d 1575, 1577 (11th Cir. 1988)). If admissions concede the core elements of the opposing party’s case, allowing withdrawal of admissions would subserve the presentation of the merits. See Raiser v. Utah County, 409 F.3d 1243, 1246 (10th Cir. 2005). As to prejudice, federal courts note that “‘“[t]he prejudice contemplated by [Rule 36(b)] is not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth.” . . . Prejudice under Rule 36(b), rather, “relates to special difficulties a party may face caused by a sudden need to obtain evidence upon withdrawal or amendment of an admission.”’” See, e.g., Dunning v. United Parcel Serv., 471 F. Supp. 2d 795, 807 (E.D. Mich. 2007) (citations omitted) (quoting Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 154 (6th Cir. 1997)). In other words, “prejudice must relate to the difficulty a party may face in proving its case at trial . . . .” Conlon v. United States, 474 F.3d at 624. Prejudice is more likely to be found “if the opposing party was somehow lulled into reliance upon the admissions due to the movant’s failure to act timely.” Essex Builders Group, Inc. v. Amerisure Ins. Co., 230 F.R.D. 682, 687 (M.D. Fla. 2005). The party relying on the deemed admission has the burden to prove prejudice, Conlon v. United States, 474 F.3d at 622, and mere inconvenience of the party obtaining the admission sought to be withdrawn or amended will not suffice, Raiser v. Utah County, 409 F.3d 1243, 1246 (10th Cir. 2005). Rule 36(a) provides a party thirty days to respond to a request for admissions. This period may be shortened or lengthened “as the court may allow . . . .” As noted in § 24.4.3, above, the party requesting admissions may move to determine the sufficiency of the answers and objections. Sanctions for denying the facts or documents in requests later proved at trial are provided for in Rule 37(c).

24–40

DISCOVERY MOTIONS AND APPEALS

§ 24.6

§ 24.6

APPELLATE REVIEW OF DISCOVERY ORDERS

§ 24.6.1 Direct Appeal or Certiorari The first consideration when seeking appellate review of a discovery order is the mode of seeking review, either direct appeal or a petition for a writ of certiorari. Appeals are taken as of right and are prescribed by law. New Harbor Vill., LLC v. Zoning Bd. of Review, 894 A.2d 901, 907 (R.I. 2006). A final judgment that completely disposes of the case is usually a precondition for a direct appeal, although an appeal may lie from an interlocutory order that possesses “‘“such an element of finality that action is called for before the case is finally terminated in order to prevent clearly imminent and irreparable harm.”’” Manzotti v. Amica Mut. Ins. Co., 695 A.2d 1001, 1003 (R.I. 1997) (quoting Martino v. Ronci, 667 A.2d 287, 288 (R.I. 1995)). In Manzotti, the court did something unusual by reviewing a protective order via direct appeal. See Manzotti v. Amica Mut. Ins. Co., 695 A.2d 1001, 1003 (R.I. 1997). Typically, however, only final judgments of dismissal or default judgments entered pursuant to Rules 37(b)(2) or 37(d) should be appealed directly. If the case involves more than one party or multiple claims, counsel must first obtain a “54(b)” ruling prior to filing the appeal. This requires the trial justice to expressly determine that no just reason for delay exists and direct entry of final judgment. See Super. R. Civ. P. 54(b); Menzies v. Sigma Pi Alumni Ass’n of R.I., 110 R.I. 488, 490, 294 A.2d 193, 195 (1972). Most discovery orders are interlocutory in nature. “The appropriate method to seek review of an interlocutory or otherwise nonappealable order is by filing and serving a petition for certiorari under Article I, Rule 13 of the Rules of Appellate Procedure.” Fayle v. Traudt, 813 A.2d 58, 61 (R.I. 2003). The petition, which resembles a complaint filed in Superior Court, shall include (1) a concise statement of the case containing the facts material to consideration of the questions presented in sufficient detail as to enable the Supreme Court to determine the desirability of issuance of the writ; (2) a statement setting forth with particularity why the relief sought is not available in any other court, or cannot be had through other appellate processes, including whether a notice of appeal has been filed with the Court and why that is not sufficient; and (3) a copy of any order or opinion which

24–41

§ 24.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

the petitioner seeks to have reviewed and any other parts of the record which may be essential to an understanding of the matters set forth in the petition. Super. Ct. R. App. P. 13(a). A memorandum of law must accompany the petition along with a check for $150 for each party joining in the petition. See Super. Ct. R. App. P. 13(a). Filing a certiorari petition is one thing, but it is quite another for the court to actually grant one. This review is discretionary, New Harbor Vill., LLC v. Zoning Bd. of Review, 894 A.2d at 907, and the court generally declines to review interlocutory orders and decisions, see Fayle v. Traudt, 813 A.2d at 61 n.1. Only if the petition presents a clear error of law or raises an issue that the court wishes to expound upon will it grant certiorari. Although the primary purpose of certiorari is supervisory in nature to keep lower tribunals within their jurisdiction, the court will issue writs “to correct alleged errors of law where it appeared that unusual hardship or exceptional circumstances would void the benefits of otherwise adequate remedies at law.” Shiller v. Gemma, 106 R.I. 163, 165, 256 A.2d 487, 488 (1969). Examples include the following: • Interpreting and calibrating “the tension between subdivisions (b)(3) and (b)(4) of Rule 26 [concerning discovery of expert reports] so that [the Court] may properly apply them to defendant’s discovery requests . . . .” Crowe Countryside Realty Assocs. Co., LLC v. Novare Eng’rs, Inc., 891 A.2d 838, 840 (R.I. 2006). • Determining whether production of documents should be compelled in light of the attorney-client and work-product privileges, where the absence of an opinion from the Supreme Court “produced a diversity of opinion among the justices of our trial courts.” Gilbert v. Travelers Indem. Co., 117 R.I. 515, 517–18, 368 A.2d 1236, 1237 (1977). • Interpreting Rule 34 for the first time since the 1969 amendment in addition to deciding a claim that the trial court erred as a matter of law. Borland v. Dunn, 113 R.I. at 339–40, 321 A.2d at 98. • Determining whether the trial court could order a Florida resident to attend a deposition by a nonparty insurance company solely to determine his financial ability to satisfy a potential judgment. Travelers Ins. Co. v. Hindle, 748 A.2d at 258. • Reviewing an order compelling the production of a psychological evaluation and tape recording of the successful applicant for a police 24–42

DISCOVERY MOTIONS AND APPEALS

§ 24.6

lieutenant’s position where an unsuccessful applicant sought the order. Nye v. Town of Westerly, 668 A.2d 1267, 1268 (R.I. 1995). On certiorari, the focus should be more on errors of law, particularly novel ones that will draw the court’s interest. This fits with the court’s standard of review on certiorari in which it examines the record to determine whether the lower court or tribunal committed an error of law. Crowe Countryside Realty Assocs. Co., 891 A.2d at 840 (quoting State v. Santiago, 799 A.2d 285, 287 (R.I. 2002)). Only unusual or novel issues that will also result in serious hardship will prompt the court to review a discovery order through certiorari. The granting of a petition simply means that the court will review the matter; it does not constitute a decision on the case one way or the other. If the course issues the writ, the case will take the same route and follow the same procedure as a direct appeal concerning transmission of the record and briefing.

§ 24.6.2 Standard of Review—Or, What Is an “Abuse of Discretion”? If a discovery issue makes its way to the Supreme Court, either through certiorari or direct appeal, the standard of review is the same. The court consistently holds that “‘[i]n granting or deny discovery motions, a Superior Court justice has broad discretion.’” See, e.g., Travelers Ins. Co. v. Hindle, 748 A.2d at 259 (quoting Colvin v. Lekas, 731 A.2d 718, 720 (R.I. 1999)). That decision will not be disturbed “‘save for an abuse of that discretion.’” Travelers Ins. Co. v. Hindle, 748 A.2d at 259 (quoting Colvin v. Lekas, 731 A.2d at 720). Unfortunately, the Supreme Court has done little to define this standard other than describe it as “deferential.” See Giuliano v. Pastina, 793 A.2d 1035, 1037 (R.I. 2002) (quoting Martin v. Howard, 784 A.2d 291, 296 (R.I. 2001)). Federal and other state courts define this standard more in terms of unreasonableness or arbitrariness than strictly legal error, although a court “‘by definition abuses its discretion when it makes an error of law.’” United States v. Yarbrough, 527 F.3d 1092, 1101 (10th Cir. 2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). Typically, however, “[a]n abuse of discretion is defined as a ‘definite and firm conviction that the [court below] committed a clear error of judgment.’” In re Eagle-Picher Indus., Inc., 285 F.3d 522, 529 (6th Cir. 2002) (quoting In re M.J. Waterman & Assocs., Inc., 227 F.3d 604, 607–08 (6th Cir. 2000)). In line with this, the U.S. Tax Court defines “abuse of discretion” as “any action that is unreasonable, arbitrary or capricious, clearly unlawful, or lacking sound basis in

24–43

§ 24.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

fact or law.” See, e.g., Williamson v. Comm’r of Internal Revenue, No. 2389307L, 2009 WL 2525445, at *3 (T.C. Aug. 19, 2009). State courts employ similar definitions. Utah courts hold that “[a]n agency abuses its discretion when it reaches an outcome ‘that is clearly against the logic and the effect of such facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing.’” Sorge v. Office of Attorney Gen., 128 P.3d 566, 571 (Utah Ct. App.), cert. denied, 138 P.3d 589 (Utah 2006) (quoting Tolman v. Salt Lake County Attorney, 818 P.2d 23, 26 (Utah Ct. App. 1991)). In Pennsylvania, “[a]n abuse of discretion constitutes a misapplication of the law, a manifestly unreasonable exercise in judgment, or a final result that evidences partiality, prejudice, bias, or ill-will. . . . When there is no rational support in the record for a finding of fact, there has been a manifestly unreasonable error in judgment and, therefore, an abuse of discretion.” Allegheny County v. Golf Resort, Inc., 974 A.2d 1242, 1245 (Pa. Commw. Ct. 2009) (citation omitted). These and other definitions incorporate the same theme of unreasonable, disproportionate, or arbitrary action. One federal court noted that the abuse of discretion standard particularly applies when a trial court has a range of choices when dealing with a particular situation. This range of choices is limited, and a trial court may not simply do as it pleases when exercising its discretion. Accordingly, “an abuse of discretion may occur when (1) a court fails to consider a relevant factor that should have received significant weight; (2) a court gives significant weight to an improper or irrelevant factor; or (3) a court considers only the appropriate factors but in weighing those factors commits a ‘clear error of judgment.’” United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). Otherwise, a trial court’s decision will not be disturbed when making its choices “‘as long as it stays within that range and is not influenced by any mistake of law.’” United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)). These definitions reveal how the abuse of discretion standard applies when reviewing discovery orders, in particular those relating to sanctions. For instance, the “smorgasbord” of Rule 37(b)(2) sanctions offers the trial judge a range of choices when dealing with any given violation of a prior discovery order. This range is limited, and the court may not pick outside of it as this kind of “abuse” would amount to an error of law. Even then, the trial court must pick with care when choosing from within this smorgasbord. For instance, Rule 37(b)(2)(C) authorizes dismissal of a case with the only limitation that it enter orders and judgments “as are just.” Super. R. Civ. P. 37(b)(2). A trial court could conceivably follow the letter of this subsection and default or dismiss all cases where a party fails to timely comply with any discovery order under any circumstance, whether it deals with an obstinate refusal to provide discovery or simple neglect 24–44

DISCOVERY MOTIONS AND APPEALS

§ 24.6

in answering one interrogatory on a tangential issue. An order entered against a party committing the latter violation is obviously not “just,” and the collective sense of fairness of the Supreme Court provides the necessary check. Although the court is not “likely to reverse” when the trial judge selects a sanction her or she “deems the most appropriate for the particular case,” Senn v. Surgidev Corp., 641 A.2d at 1319, it will occasionally do so if this selection is clearly unreasonable and fails to balance the underlying purposes of discovery with the public interest in having cases decided on their merits, see Senn v. Surgidev Corp., 641 A.2d at 1319. For this reason, the court requires “‘evidence demonstrating persistent refusal, defiance or bad faith’” before the trial court may dismiss a case or enter a default judgment. See, e.g., Flanagan v. Blair, 882 A.2d at 573 (quoting Travelers Ins. Co. v. Builders Res. Corp., 785 A.2d at 569). Similarly, payment of expenses involving discovery disputes “has in practice been reserved for outrageous conduct.” See Senn v. Surgidev Corp., 641 A.2d at 1320 (quoting Super. R. Civ. P. 37 Reporter’s Notes). Conversely, dismissal, default, or some other harsh sanction will likely constitute an abuse of discretion if opposition to a motion to compel discovery was substantially justified, even if unavailing, and no evidence exists of outrageous conduct or bad faith. See Senn v. Surgidev Corp., 641 A.2d at 1320. These and other rulings incorporate the concept of proportionality into the abuse of discretion standard. If the trial judge exhibits some sense of proportionality between the offense found and the sanction imposed, the Supreme Court will not find an abuse of discretion. The question in this regard is not how the court would have ruled had it dealt with the same situation in the first instance but whether a reasonable person could reach the same result. No abuse of discretion has occurred if reasonable persons could differ as to the issue. See In re EaglePicher Indus., Inc., 285 F.3d at 529 (quoting In re M.J. Waterman & Assocs., Inc., 227 F.3d at 607–08). This standard serves several purposes that provide substantial guidance whether or not to seek appellate review of an adverse discovery order. The court has no desire to micromanage discovery issues. Second, reasonable people are allowed to disagree as to orders and judgments “as are just.” As long as the order giving rise to this disagreement does not cross the line into arbitrariness or result from obvious error, factually or legally, trial judges must be allowed to “judge” without constant fear of reversal. In line with this, “bright line” rules relating to discovery would probably not work very well considering the vast variety of cases, circumstances, and even personalities that judges must deal with on a daily basis. In this respect, trial judges manage discovery as much as they rule upon it, if not more so, and good managers need substantial leeway and flexibility when dealing with the wide variety of people and circumstances that come their way. Reasonableness as opposed to exactitude provides a much better framework. 24–45

§ 24.7

§ 24.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

DRAFTING CONSIDERATIONS

§ 24.7.1 Motions to Compel (a)

Motions to Compel Answers to Interrogatories and Production of Documents

Forms of motions to compel must comply with Rule 7(b)(2), which requires the drafting party to follow the rules applicable to pleadings. Motions to compel discovery or more responsive answers to discovery “shall specify the number of days for compliance.” Super. R. Civ. P. 7(b)(3). Although not a hard and fast rule, most attorneys typically ask for a thirty-day order running from the date of hearing. The form of the motion should contain basic information allowing anyone reviewing it to know exactly how the opposing party or person transgressed and the remedy sought. For instance, motions to compel answers to interrogatories or production of documents should include the date the request was originally propounded. The moving party need not attach a copy of the interrogatories or request to the motion—simply stating that a response to the request is overdue will suffice. All motions should set forth the hearing date and time. Feel free to put the hearing date in the header on the first page of the motion—clerks will appreciate it as this makes the hearing date easier to find. Unless attorney fees and costs are sought under Rule 37(a)(4)(A), motions to compel are “rule of court” motions, meaning that they will be granted without a hearing unless the opposing party or person proffers an objection “served and filed at least 3 days before the time specified for its hearing.” Super. R. Civ. P. 7(b)(3). Notice of the motion should contain language reflecting this. The motion must also include “a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.” Super. R. Civ. P. 37(a)(2).

(b)

Motions to Compel More Responsive Answers to Interrogatories

A motion to compel more responsive answers to interrogatories should restate verbatim each interrogatory to which counsel seeks a more responsive answer, repeat the answer given, state the reasons why this answer does not adequately 24–46

DISCOVERY MOTIONS AND APPEALS

§ 24.7

respond to the interrogatory or why the objection should be overruled, and the order sought from the court. The argument should be as short as possible but may contain citations to case law if necessary, especially when seeking to overcome objections such as claims of privilege. The motion could easily serve as a short memorandum of law. For this reason and simply to save time in the courtroom, counsel would be well advised to send a copy of the motion to the motion justice before the hearing. The judge will be much better able to comprehend the basis of your motion when reading it in the comfort and quiet of chambers than on the bench with dozens of other attorneys waiting to be heard. At the very least, counsel should have a bench copy handy for the court’s use during argument. Motions to compel more responsive answers are among the most time-consuming on the motion calendar and for that reason among the least favorite of motion justices. The bench will appreciate anything done to streamline the process as would colleagues waiting to be heard.

(c)

Motions to Compel Answers at Depositions

Rule 37(a)(2) also permits a party to move to compel a deponent, either a party or nonparty witness, to answer a question asked at a deposition but not answered. The motion should include a copy of the relevant portions of the deposition transcript, and more often than not the motion justice will need to read it. For this reason, counsel should send a copy of the motion to the motion justice prior to the hearing. A motion to compel answers at a deposition will most likely include a request for attorney fees and costs, particularly if an additional deposition is required. If so, counsel should state in the motion that costs are requested. A motion that includes this request is not a “rule of court” motion under Rule 7(b)(3)(vii) as a hearing will be required to determine the amount of costs, if any, the opposing party or deponent must pay.

§ 24.7.2 Motions for Sanctions Motions under Rule 37(b) or 37(d) must also follow the form prescribed in Rule 7. Like motions to compel, they should spell out the basis in the body of the motion, usually that the opposing party failed to comply with an order entered on a particular date compelling discovery responses within the time period specified in the prior order. The motion should also specify the type of order sought, typically a thirty-day conditional order of default or dismissal. If attorney fees and costs are sought, the motion must state this as well.

24–47

§ 24.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Rule 37(b)(2) or 37(d) motions that seek sanctions less than default or dismissal should have the same basic framework as those seeking a conditional order of default or dismissal, but should also specify the facts the moving party seeks to establish or the claims it seeks to preclude, as the case may be. Anyone reading the motion should be able to discern exactly why the party seeks the specific sanction sought. If dealing with interrogatories, for example, attach a copy of the answers to the motion as well as a copy of the order subsequently violated. Not only will this help the motion justice during the hearing, but may help to resolve the dispute entirely if the motion clearly demonstrates to the other party the error of its ways. Rule 37(b) and 37(d) motions are not “rule of court” motions. However, motions under Rule 37(d) concerning the failure to answer interrogatories or produce documents must contain a certification that the moving party conferred or attempted to confer in good faith with the party failing to make the discovery.

§ 24.7.3 Motions for Protective Orders Like motions to compel under Rule 37(a)(2), motions for protective orders under Rule 26(c) require certification that the moving party made a good-faith effort to confer with opposing counsel to work out the matter. They are also “rule of court” motions per Rule 7(b)(3)(vii). The motion itself should spell out the protective order sought and the basis for seeking it.

24–48

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24A—Motion to Shorten Time to Serve Answers to Interrogatories HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ PLAINTIFF’S/DEFENDANT’S MOTION TO SHORTEN TIME FOR DEFENDANTS/PLAINTIFFS TO SERVE ANSWERS TO PLAINTIFF’S/DEFENDANT’S INTERROGATORIES Pursuant to Super. R. Civ. P. 33(a), Plaintiff/Defendant __________ moves the Court for an order shortening the time to _____ days for Defendant/ Plaintiff __________ to serve answers to Plaintiff’s/Defendant’s interrogatories, a proposed copy of which is attached to this motion. The basis of this motion is as follows: 1.

[State basis of motion] ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion will be heard on __________, 20__, at 9:30 a.m.

24–49

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

CERTIFICATION I certify that on the ___ day of __________, 20__, I transmitted a copy of this motion to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–50

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24B—Motion to Compel Answer to Deposition Question HEARING DATE: ________ THIS IS NOT A RULE OF COURT MOTION (INCLUDE THIS SPECIFICATION IF SEEKING ATTORNEY’S FEES AND COSTS) STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ PLAINTIFF’S/DEFENDANT’S MOTION TO COMPEL ANSWER TO DEPOSITION QUESTION Pursuant to Super. R. Civ. P. 37(a)(2), Plaintiff/Defendant __________ moves the Court for an order compelling Defendant/Plaintiff [or non-party deponent] to provide a complete answer to a question at his/her deposition on __________, to which he/she invoked the attorney-client privilege. Plaintiff/Defendant requests that the deponent provide a complete written answer, sworn under oath, to this question within ten (10) days of the date of hearing [or resubmit to a deposition for purposes of answering this question]. Plaintiff/Defendant __________ seeks an award of costs and expenses for prosecuting this motion and the subsequent deposition pursuant to Super. R. Civ. P. 37(a)(4)(A). ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321

24–51

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

(401) 348-1090 fax [email protected] NOTICE This motion will be heard on __________, 20__, at 9:30 a.m. [NOTE: This would normally be a “rule of court” motion under Rule 7(b)(3)(vii) but for the request for attorney’s fees and costs which will require a hearing. If seeking attorney’s fees, specify in the header on the first page below the hearing date that “THIS IS NOT A RULE-OF-COURT MOTION”, and/or include the same specification in the “notice” section on the second page.] CERTIFICATION I certify that on the ___ day of __________, 20__, I transmitted a copy of this motion to __________, by regular mail, postage prepaid. ______________________________

24–52

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24C—Motion to Compel Answers to Interrogatories HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION TO COMPEL ANSWERS TO INTERROGATORIES Plaintiff/Defendant __________ moves the Court for an order compelling Defendant/Plaintiff __________ to provide answers to the interrogatories propounded on __________ within thirty (30) days of the date of hearing. ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion will be heard on _____________, 20__, at 9:30 a.m. if an objection is timely filed, otherwise this motion will be granted by rule of court pursuant to Super. R. Civ. P. 7(b)(3)(vii).

24–53

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

RULE 37 CERTIFICATE I, Kelly M. Fracassa #3699, certify that pursuant to Super. R. Civ. P. 37(d) I made a good faith effort to resolve the issues raised in this motion by conferring or attempting to confer with opposing counsel. ______________________________ Kelly M. Fracassa #3699 CERTIFICATION I certify that on the ___ day of __________, 20__, I transmitted a copy of this motion to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–54

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24D—Motion to Compel Attendance at Deposition HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION TO COMPEL ATTENDANCE AT DEPOSITION Pursuant to Super. R. Civ. P. 37(d), Plaintiff/Defendant __________ moves the Court for an order compelling Defendant/Plaintiff __________ to attend a deposition at the offices of NACCARATO & FRACASSA, 96 Franklin Street, Westerly, Rhode Island, on __________, at ___ p.m., or at such other location, date, and time as the parties may mutually agree. The basis of this motion is that [the deponent] refused to attend a deposition scheduled for __________, at ___ p.m., as set forth in the attached transcript. ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion shall be heard on __________, at 9:30 a.m.

24–55

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

CERTIFICATION I certify that on the ___ day of __________, 20__, I transmitted a copy of this motion to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–56

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24E—Motion to Compel More Responsive Answers to Interrogatories HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ PLAINTIFF’S/DEFENDANT’S MOTION TO COMPEL MORE RESPONSIVE ANSWERS TO INTERROGATORIES Plaintiff/Defendant __________ moves the Court for an order compelling Defendant/Plaintiff __________ to provide more responsive answers to the interrogatories propounded on or about __________ within thirty (30) days of the date of hearing. The specific interrogatories to which Plaintiff/Defendant seeks more responsive answers are as follows: [State interrogatory] ANSWER: [State answer given] BASIS FOR MOTION: [State basis here—NOTE: The basis for the more responsive answer should be as concise as possible, but detailed enough to constitute a “stand-alone” argument, one that the court could rule upon without oral argument. It may also contain citations to case law and other authorities. If counsel seeks more responsive answers to several interrogatories, send a bench copy to the motion justice before the hearing date. At the very least, have a bench copy handy during oral argument.] ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 24–57

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

(401) 596-0321 (401) 348-1090 fax [email protected] RULE 37 CERTIFICATE I, Kelly M. Fracassa #3699, certify that pursuant to Super. R. Civ. P. 37(a)(2), I made a good faith effort to resolve the issues raised in this motion by conferring or attempting to confer with opposing counsel. ______________________________ Kelly M. Fracassa #3699 NOTICE This motion will be heard on __________, 20__, at 9:30 a.m. if an objection is timely filed, otherwise this motion will be granted by rule of court pursuant to Super. R. Civ. P. 7(b)(3)(vii). CERTIFICATION I certify that on the ___ day of __________, 20__, I transmitted a copy of this motion for more responsive answers to interrogatories to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–58

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24F—Motion to Compel Production of Documents HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION TO COMPEL PRODUCTION OF DOCUMENTS Plaintiff/Defendant __________ moves the Court for an order compelling Defendant/Plaintiff __________ to provide the documents requested on __________, within thirty (30) days of the date of hearing. ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion will be heard on __________, 20__, at 9:30 a.m. if an objection is timely filed, otherwise this motion will be granted by rule of court pursuant to Super. R. Civ. P. 7(b)(3)(vii).

24–59

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

RULE 37 CERTIFICATE I, Kelly M. Fracassa #3699, certify that pursuant to Super. R. Civ. P. 37(d) I made a good faith effort to resolve the issues raised in this motion by conferring or attempting to confer with opposing counsel. ______________________________ Kelly M. Fracassa #3699 CERTIFICATION I certify that on the ___ day of __________, 20__, I transmitted a copy of this motion to [counsel’s name and address] by regular mail, postage prepaid. ______________________________

24–60

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24G—Motion to Default HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION FOR FINAL ENTRY OF DEFAULT Pursuant to Super. R. Civ. P. 37(b)(2)(C) [or 37(d)], Plaintiff __________ moves the Court for entry of final default against Defendant __________ due to Defendant’s failure to provide answers to Plaintiff’s interrogatories and to produce requested documents in accordance with the prior conditional order of default entered on [specify date of order]. [NOTE: This same form may be used by a defendant seeking default on its counterclaim] ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion will be heard on __________, 20__, at 9:30 a.m.

24–61

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

RULE 37 CERTIFICATE I, Kelly M. Fracassa #3699, certify that pursuant to Super. R. Civ. P. 37(d) I made a good faith effort to resolve the issues raised in this motion by conferring or attempting to confer with opposing counsel. ______________________________ Kelly M. Fracassa #3699 [NOTE: This certificate is necessary only if counsel files this motion pursuant to Rule 37(d) due to failure to answer interrogatories or respond to a request for production. This certificate is not required if the motion is filed under Rule 37(d) due to a party’s failure to attend a deposition or if the motion is filed under Rule 37(b)(2)(C)] CERTIFICATION I certify that on the ___ day of __________, 20__, I transmitted a copy of this motion to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–62

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24H—Motion to Dismiss HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 2009-_____

________________________ MOTION TO DISMISS Pursuant to Super. R. Civ. P. 37(b)(2)(C) and 37(d), Defendant __________ moves the Court for a conditional order of dismissal of Plaintiff __________ complaint due to Plaintiff’s failure to comply with an order entered on __________ compelling Plaintiff to provide answers to Defendant’s interrogatories and respond to Defendant’s request for production within thirty (30) days of __________. Defendant requests a thirty-day conditional order of dismissal. ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion will be heard on __________, 20__, at 9:30 a.m.

24–63

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

CERTIFICATION I certify that on the ___ day of __________, I transmitted a copy of this motion to [counsel’s name and address] by regular mail, postage prepaid. ______________________________

24–64

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24I—Motion to Determine Sufficiency of Responses to Request for Admissions HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION TO DETERMINE SUFFICIENCY OF RESPONSES TO REQUEST FOR ADMISSIONS Pursuant to Super. R. Civ. P. 36(a), Plaintiff/Defendant __________ moves the Court for an order determining that Defendant/Plaintiff __________ has insufficiently responded to Defendant’s request for admissions dated __________. If this Court determines that any of the responses are insufficient, Defendant requests that the request either be deemed admitted or, in the alternative, that Plaintiff be ordered to file sufficient responses within thirty (30) days of the date of hearing. The responses deemed insufficient and corresponding requests are as follows: (1) [Repeat request here] RESPONSE: Plaintiff objects to this Request because the word “restricts” is undefined and ambiguous. Consequently, Plaintiff cannot truthfully admit or deny this Request. (1) [Repeat response here] BASIS FOR MOTION: [State argument here] ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA 24–65

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion will be heard on __________, 20__, at 9:30 a.m. CERTIFICATION I certify that on the ___ day of __________, I transmitted a copy of this motion to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–66

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24J—Motion for Entry of Final Judgment of Dismissal HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION FOR ENTRY OF JUDGMENT OF DISMISSAL Pursuant to Super. R. Civ. P. 37(b)(2)(C) [or 37(d)], Defendant __________ moves the Court for entry of judgment of dismissal against Plaintiff __________ due to Plaintiff’s failure to provide answers to Defendant’s interrogatories and to produce requested documents in accordance with the prior conditional order of dismissal entered on [specify date order entered]. [NOTE: This same form may be used by a plaintiff seeking dismissal of a defendant’s counterclaim] ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion will be heard on __________, 20__, at 9:30 a.m.

24–67

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

RULE 37 CERTIFICATE I, Kelly M. Fracassa #3699, certify that pursuant to Super. R. Civ. P. 37(d) I made a good faith effort to resolve the issues raised in this motion by conferring or attempting to confer with opposing counsel. ______________________________ Kelly M. Fracassa #3699 [NOTE: This certificate is necessary only if counsel files this motion pursuant to Rule 37(d) due to failure to answer interrogatories or respond to a request for production. This certificate is not required if the motion is filed under Rule 37(d) due to a party’s failure to attend a deposition or if the motion is filed under Rule 37(b)(2)(C)] CERTIFICATION I certify that on the ___ day of __________, 20__, I transmitted a copy of this motion to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–68

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24K—Motion to Take Deposition Less than Thirty Days After Service of Complaint HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION TO TAKE DEPOSITION LESS THAN THIRTY DAYS AFTER SERVICE OF COMPLAINT Pursuant to Super. R. Civ. P. 30(a)(2)(B), Plaintiff/Defendant __________ moves the Court for an order permitting him to take the deposition of Defendant/Plaintiff __________ less than thirty days after service of process upon him. The notice of Defendant’s/Plaintiff’s deposition is attached to this motion and incorporated herein by reference. ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion will be heard on __________, 20__, at 9:00 a.m., or when the Court can hear this matter.

24–69

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

CERTIFICATION I certify that on the ___ day of __________, I transmitted a copy of this motion to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–70

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24L—Motion to File Request for Production with Response Date of ________ HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ PLAINTIFF’S/DEFENDANT’S MOTION TO FILE REQUEST FOR PRODUCTION WITH RESPONSE DATE OF ________ Pursuant to Super. R. Civ. P. 34(b), Plaintiff/Defendant __________ moves the Court for an order shortening the time for Defendant/Plaintiff __________ to respond to Plaintiff’s request for production to __________. The basis for this motion is [state basis here] ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion shall be heard on __________, at 9:30 a.m.

24–71

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

CERTIFICATION I certify that on the ___ day of __________, I transmitted a copy of this motion to [counsel’s name and address] by regular mail, postage prepaid. ______________________________

24–72

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24M—Motion to Propound More than Thirty Interrogatories HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION TO PROPOUND MORE THAN THIRTY INTERROGATORIES Pursuant to Super. R. Civ. P. 33(b), Plaintiff/Defendant __________ moves the Court for an order allowing it to propound more than thirty interrogatories in this matter. The basis for this motion is [state basis]. Plaintiff/Defendant has propounded the interrogatories for which it seeks permission to propound contemporaneously with this motion. ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion shall be heard on __________, at 9:30 a.m.

24–73

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

CERTIFICATION I certify that on the ___ day of __________, I transmitted a copy of this motion to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–74

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24N—Motion for Protective Order HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION FOR PROTECTIVE ORDER Pursuant to Super. R. Civ. P. 26(c), Plaintiff/Defendant __________, moves the Court for a protective order barring [describe the discovery sought to be barred] The basis for this motion is that [state basis of motion here]. ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion will be heard on __________, 20__, at 9:30 a.m. if an objection is timely filed, otherwise this motion will be granted by rule of court pursuant to Super. R. Civ. P. 7(b)(3)(vii).

24–75

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

RULE 37 CERTIFICATE I, Kelly M. Fracassa #3699, certify that pursuant to Super. R. Civ. P. 26(c), I made a good faith effort to resolve the issues raised in this motion by conferring or attempting to confer with opposing counsel. ______________________________ Kelly M. Fracassa #3699 CERTIFICATION I certify that on the ___ day of __________, 20__, I transmitted a copy of this motion to [counsel’s name and address], by regular mail, postage prepaid. ______________________________

24–76

DISCOVERY MOTIONS AND APPEALS

EXHIBIT 24O—Motion to Take Deposition by Telephone HEARING DATE: ________ STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON COUNTY SUPERIOR COURT ________________________ V.

C.A. NO. 20__-_____

________________________ MOTION TO TAKE DEPOSITION BY TELEPHONE Pursuant to Super. R. Civ. P. 30(b)(7), Plaintiff/Defendant moves the Court for an order permitting him/her to take the deposition of __________, of __________, by telephone, upon proper notice to all parties to this action. ______________________________, by ____________ attorney, ______________________________, Kelly M. Fracassa #3699 NACCARATO & FRACASSA P.O. Box 2976 96 Franklin Street Westerly RI 02891 (401) 596-0321 (401) 348-1090 fax [email protected] NOTICE This motion shall be heard on __________, at 9:30 a.m. CERTIFICATION I certify that on the ___ day of __________, I transmitted a copy of this motion to [counsel’s name and address—also deponent’s name and address if a non-party] by regular mail, postage prepaid. ______________________________ 24–77

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

24–78

CHAPTER 25

Electronic Discovery Howard E. Walker § 25.1

Introduction ........................................................................ 25–1 § 25.1.1

The World of Electronic Information and Discovery...................................................... 25–1

§ 25.1.2

Federal and Rhode Island Superior Court Discovery Rules Briefly Compared .................... 25–6

§ 25.1.3

E-Discovery Bibliography................................... 25–7

§ 25.2

Electronic Document Storage and Management Practices .............................................................................. 25–7

§ 25.3

Preserving and Producing Electronic Data...................... 25–9 § 25.3.1

§ 25.3.2 § 25.4

Preservation......................................................... 25–9 (a)

Obligation to Preserve................................ 25–9

(b)

Scope of Preservation Obligation............. 25–12

(c)

Production ................................................ 25–17

Sanctions for Breach of the Duty to Preserve or Produce ......................................................... 25–17

Collecting Electronic Information from Adversaries and Third Parties ............................................................. 25–23 § 25.4.1

Putting Your Adversary on Notice..................... 25–23

§ 25.4.2

Obtaining Order to Preserve Evidence.............. 25–23

§ 25.4.3

Using Formal Discovery Devices...................... 25–24 (a)

Interrogatories .......................................... 25–24

(b)

Document Requests.................................. 25–25

EXHIBIT 25A—E-Discovery Bibliography ................................. 25–31 25–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

EXHIBIT 25B—Excerpt from the Sedona Guidelines ................25–33 EXHIBIT 25C—Sample Electronic Discovery Outline for Preparing or Deposing a Business Witness .............................25–37 EXHIBIT 25D—Sample Questionnaire for Interviewing Client Technology Personnel ..........................................................25–43 EXHIBIT 25E—Sample Notices (Formal and Basic) ..................25–49 EXHIBIT 25F—Sample Preservation Letter................................25–51 EXHIBIT 25G—Model Order Regarding Preservation..............25–53

25–ii

CHAPTER 25

Electronic Discovery Howard E. Walker

Scope Note This chapter reviews a series of topics relating to electronic discovery, including the risks associated with maintaining electronic information, tactics used in discovering it, and the safeguards necessary to preserve it for trial. It begins with a discussion of how to organize, preserve, and produce electronic data, including information on legal duties to preserve and maintain data, data storage practices, and management policies. It then discusses techniques for obtaining data in the possession of adversaries and third parties, with attention to formal discovery devices—interrogatories, document requests, and depositions—as well as other techniques designed to increase the likelihood that important evidence will be preserved. The chapter continues with a review of considerations relating to the use of electronic evidence at trial, including authentication issues and guidance for making the most effective use of the electronic data available. The chapter concludes with a discussion of ethical issues relating to e-discovery.

§ 25.1

INTRODUCTION

§ 25.1.1 The World of Electronic Information and Discovery It is by now common knowledge among lawyers that computer use and ecommerce have grown explosively in recent years. Increasingly, businesses— indeed lawyers themselves—create information electronically that will never appear on paper. One recent study calculates the amount of digital information created in 2008 to be 487 billion gigabytes—equal to 19 billion fully loaded DVDs or 4.8 quadrillion online bank transactions—and predicts the digital universe will double in size every eighteen months, quintupling by 2012. See “Digital Information Growth Outpaces Projections, Despite Down Economy,” available

25–1

§ 25.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

at http://www.emc.com/about/news/press/2009/20090518-01.htm. E-mail is taking the place of the telephone message, the fax, the written letter, and perhaps even water-cooler conversation. By some estimates, worldwide e-mail volume is about 210 billion per day. Even if 70 percent of those are spam or viruses, that would leave 63 billion “legitimate” e-mails per day, or about 23 trillion per year. E-mail has no sooner established its primacy over “legacy” communication media, than its own primacy is coming under challenge by an even newer medium. “Texting”—text messages transmitted between cell phones—three years ago hugely popular in Asia and Europe but almost unknown in the United States, is rapidly gaining popularity here, too. See http://money.cnn.com/magazines/business2/ business2_archive/2006/08/01/8382255/index.htm; http://en.wikipedia.org/wiki/ Text_messaging#United_States. Texting already promises to be another potential bonanza for litigators. See, e.g., “‘Textual harassment’ on the rise—Text messages can be potent evidence in bias suits,” NLJ (July 20, 2009), at http://www.law.com/ jsp/nlj/PubArticleNLJ.jsp?id=1202432261824&hbxlogin=1. E-mail’s newest challenger—but surely not the last—is the Web site Twitter, which has become a burgeoning means of communication via the “tweet”—a text message, limited to 140 characters, that the user can post on Twitter and disseminate to users of cell phones and other portable devices. See “The Twitter Guide” at http://webtrends.about.com/od/twitter/u/twitter_guide.htm. Now, when most lawyers have yet to learn about tweets, a path-breaking Chicago lawyer has already started a lawsuit over one, on behalf of a landlord, alleging that a Twitter-using tenant posted a defamatory tweet about her “moldy” apartment. “Tweet lawsuit: Chicago Landlord sues ex-tenant over tweet complaining about apartment,” Chicago Tribune, July 29, 2009 at http://www.chicagotribune.com/news/ local/chi-twitter-suit-29-jul29,0,2500898.story. Tweets, too, promise a litigation bonanza. The movement of information from the paper realm to the digital has sparked a corresponding shift in litigation discovery from paper discovery to “ediscovery.” Increasing litigation of issues in e-discovery led the Judicial Conference to adopt the 2006 amendments to the Federal Rules of Civil Procedure, amendments that for the first time explicitly addressed electronically stored information. Parallel work by the Sedona Conference on “best practices” for information and records management and for electronic document production lead to publication of its highly regarded “Guidelines,” “Principles,” and “Glossary.” As we venture into the unfamiliar realm of e-discovery, it is useful to resist the temptation to think that just because we work in the “Information Age” we are working with something fundamentally new and different from what has gone before, that law practice has changed in some basic way. The reality is that, as usual, the more things have changed, the more they have basically remained the 25–2

ELECTRONIC DISCOVERY

§ 25.1

same. Lawyers today traffic in information, communication, and advocacy—just as lawyers always have, from the time of Hammurabi. We advise our clients on the law, advocate their interests, and order human relationships by drafting contracts, legislation, and legal instruments. The only thing that has really changed over time is the medium in which we store and communicate our work. The New Hampshire Supreme Court implicitly recognized this reality 140 years ago, in a case the shows how the electronic age is not quite as new as we might think it is. At issue was whether an electronic transmission—a telegram—was a “signed writing” that would satisfy the requirements of the Statute of Frauds. The court had no difficulty holding that it was, observing that “[i]t makes no difference whether the operator writes the offer or the acceptance . . . with a steel pen an inch long attached to an ordinary penholder, or whether his pen be a copper wire a thousand miles long. In either case the thought is communicated to the paper by use of the finger resting upon the pen; nor does it make any difference that in one case common . . . ink is used, while in the other case a more subtle fluid, known as electricity, performs the same office.” Howley v. Whipple, 48 N.H. 487 (1869). The medium has changed, but not the message. Similarly, the business of litigation discovery has, from the beginning, been all about information. From its inception, the scope of discovery, as defined in Rhode Island (and Federal) Rule 26, has been, “any matter, not privileged, which is relevant to the subject matter” of the dispute. By going on to provide that “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence,” (emphasis added) the Rule makes it clear that “matter” means “information.” Nevertheless, the world of digital information differs from the world of paper in ways that matter to the practical lawyer. The digital world holds, at once, golden opportunities for the savvy, lethal traps for the unwary, and potential quagmires for both. Following are some key differences the practical lawyer needs to know: • Electronic information storage consumes only a minute fraction of the physical space paper storage requires. A standard CD-ROM holds 650 megabytes of data, the equivalent of about 325,000 typed pages. One gigabyte holds 500,000 pages—about 100 “banker’s boxes”—of typed documents. For $100 today, you can buy a portable hard drive that will hold 30,000 banker’s boxes of documents—several truckloads worth—or six months worth of continuous recorded music, and carry it in a shirt pocket! See Guidelines For State Trial Courts Regarding Discovery Of Electronically-Stored Information (National Conf. of Chief Justices

25–3

§ 25.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

2006) at v, available at http://www.ncsconline.org/images/ EDiscCCJGuidelinesFinal.pdf. • The explosion in both numbers and different kinds of devices capable of storing and/or transmitting electronic information has hugely expanded the number of places where discoverable electronic information could reside. Once upon a time, the only places you had to look for relevant paper were a company’s central and maybe departmental files and the offices of a few key executives and their secretaries. Now that same company will have a computer network, perhaps with separate servers for documents, email, databases, and other data; those executives—and all of the people reporting to them and all of their secretaries—have company PCs whose local hard drives may harbor e-mails and other documents; some or all of these people may also have personal or company (or both) laptop computers, not to mention personal or company (or both) handheld devices, like PDAs and cell phones, and, of course, home computers, any or all of which may contain relevant e-mails, documents, and other data. They may also use portable storage media like thumb drives, portable hard drives, and MP3 players. Some or all of this data likely also resides on offsite backup tapes (obsolete, but still in use) or on the servers of offsite data storage and disaster recovery vendors. • Electronic documents and storage devices may contain at least three new types of information that does not exist in the paper world. See, e.g., Guidelines For State Trial Courts Regarding Discovery Of Electronically-Stored Information (National Conf. of Chief Justices 2006) at vi:

25–4

–

Metadata: This is information about a digital file that is embedded in the file itself—such as a Word document or an Excel spreadsheet—though not visible on the “surface” of the document. Examples include creation date, author, source, editorial history, and printing history, not to mention the editorial changes and comments that become part of a document through, e.g., the “track changes” feature in Microsoft Office applications.

–

Deleted data: This is data that still resides on a hard drive or server even though a user has “deleted” the data. Unbeknownst to many users is the fact that all the “delete” key does is remove a file from the computer’s index and mark its space as available to be overwritten as needed for other files.

ELECTRONIC DISCOVERY

§ 25.1

Until the file is actually overwritten, however, it remains there in all its glory, waiting for a skilled technician to recover it. –

System data: This is data the computer itself (or special software on it) records, independently of file creation, such as when a user logged on or off, Web sites visited, passwords used, documents printed or faxed, and in some cases even a record of keystrokes.

All of this new data can be the subject of discovery and of discovery disputes, such as whether the data is properly discoverable in a given case, or whether a particular discovery request—as drafted— requires production of the data or not. Remember that just because this discovery mountain is there does not mean you have to climb it! This data is more difficult and expensive to get at than the basic documents, so unless you have good reason to believe you will strike gold, better to leave it alone. • Electronic documents, whether stored in native format (i.e., in the application that created them, such as Word) or in a substitute like PDF, are word searchable. Thus, even enormous document databases can be searched for key words or phrases in seconds. This is not possible with paper documents, except by scanning them and converting the scanned images to text with OCR software, a laborious and expensive task if there are a large number of documents. • E-mail has become the dominant medium for business communication, displacing both “formal” correspondence and casual telephone and water cooler conversation. Users tend to be more casual in crafting e-mails than they used to be in drafting formal letters. Users also tend to think of e-mail as more ephemeral and “confidential” than it really is, and so may be more candid and less circumspect than they would be in formal letters. Casual phone and water cooler chatter, which used to disappear instantly and forever, is now preserved, in writing, for posterity. A client’s or adversary’s computers and e-mail servers potentially contain a vein of ill-advised comments, misinformation, false admissions, and other “wincers” that could be either a mother lode or a ticking time bomb, depending on the litigator’s perspective. • Electronic documents, unlike paper ones, can be altered or even disappear, without active human intervention. Some companies, for example, have records management programs that may automatically delete documents or e-mails over a certain age, to save 25–5

§ 25.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

server space or for other legitimate business reasons. Unless these programs are overridden by a “litigation hold” early in the development of a dispute, a client can lose helpful evidence or expose itself to a “spoliation” claim by an adversary. • Finally, the ease with which e-mails and other electronic documents can be replicated, distributed, and placed on various electronic devices has created an explosion in the number of “documents” that fall under Rule 26’s scope of discovery. Thus, for example, a search for a particular file name may turn up dozens, possibly even hundreds, of documents with the same name. These documents—and their metadata—may or may not be exact duplicates and any differences among them may or may not be material to a dispute. The only way to know for sure is to check, which can be costly and which offers no guarantee of a useful return. Thus ediscovery can become a hugely expensive and wasteful enterprise, if not—perhaps even if—managed carefully. In the years since the 2006 amendments to the Federal Rules of Civil Procedure took effect, the growing expense of e-discovery—and a growing sense that its information benefits are not worth the cost—has provoked a backlash. A joint project by the American College of Trial Lawyers and the University of Denver’s Institute for the Advancement of the American Legal System has produced a report advocating severe curtailment of litigation discovery—especially ediscovery—to keep discovery expense proportional to amounts in controversy. See ACTL-IAALS Official Final Report (2009), available at http://www.actl.com/ AM/Template.cfm?Section=Home&template=/CM/ContentDisplay.cfm&Conte ntID=4053. Some are blaming the expense of e-discovery, and resulting reluctance of corporate counsel to engage in litigation, for what they perceive as a flattening or even decline in litigation during the current economic recession. See “For litigators, a different kind of recession,” 31 NLJ No. 50 (Aug. 17, 2009) at 6.

§ 25.1.2 Federal and Rhode Island Superior Court Discovery Rules Briefly Compared Both the Federal Rules of Civil Procedure and the Superior Court Rules underwent substantial amendment in 2006. The Federal Rules amendments, effective December 1, 2006, for the first time explicitly addressed the already burgeoning discovery of electronic information and the guidance emerging from litigation over that discovery, especially the famous Zubulake series of cases from the Southern District of New York. These changes affected Rules 16 (pretrial conferences), 26 (scope of discovery), 33 25–6

ELECTRONIC DISCOVERY

§ 25.1

(interrogatories), 34 (production of documents and things), 37 (discovery sanctions), and 45 (subpoenas), adding to each explicit references to electronic information. The Superior Court Rules amendments (effective June 15, 2006), by contrast, were intended to bring those rules into conformity—to the extent deemed appropriate—with earlier amendments to the Federal Rules. Their only mention of the electronic world was in Rule 5(b)(2)(D) and 5(b)(3), which permit service of papers by any means, “including electronic means,” for which the party or lawyer has given written consent, but provide that such service is ineffective if the serving party learns that it did not reach the party to be served. The Superior Court discovery rules today, therefore, are substantially similar to the Federal Rules as they were before the 2006 amendments. It is well settled that Rhode Island courts will look to the federal courts’ interpretation of the Federal Rules for assistance in interpreting similar provisions of the Rhode Island Rules. See, e.g., Fireman’s Fund Ins. Co. v. McAlpine, 120 R.I. 744, 391 A.2d 84 (1978); Smith v. John’s-Manville Corp., 489 A.2d 336 (R.I. 1985). That means Rhode Island judges will likely find the Zubulake series and other cases construing the pre-2006 Federal Rules to be persuasive authority for the interpretation of the Superior Court Rules. Moreover, even cases construing the amended Federal Rules may be persuasive, inasmuch as at least arguably the 2006 amendments just made explicit what was already implied by the rules.

§ 25.1.3 E-Discovery Bibliography For a list of resources that every litigator’s e-bookshelf should contain, see Exhibit 25A.

§ 25.2

ELECTRONIC DOCUMENT STORAGE AND MANAGEMENT PRACTICES

Nowadays, no business organization—especially one reasonably likely to become involved in litigation—should be without a well-considered plan for the management, retention, and destruction of its business records, both paper and electronic. The goal of such a plan should be to ensure the retention and ready availability of records the organization needs to conduct its normal business operations, to comply with any legal obligations—including records retention requirements—imposed by statute or regulation, or to meet reasonably foreseeable litigation needs—and to insure the destruction of everything else.

25–7

§ 25.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Obviously, no two businesses are exactly alike in their operational needs and legal obligations, so no single plan will work for all. The plan should be designed by a team including key operational, financial, engineering, and IT personnel, and both inside and outside counsel. The team should determine what records the company needs to keep and for how long, and what it can safely get rid of and when. The objective may be easier to state than to achieve: when litigation strikes, the company should have, readily available, all the records it needs to prove its case or meet its discovery obligations, and no records that are obsolete or useless but which the company may have to search and produce anyway, perhaps at great expense (document mountains that do not exist do not have to be climbed!). The plan should take into account not just the company’s own internal computer systems, but those of third parties whose systems may in some way link with the company’s, such as customers, vendors, and offsite providers of data storage, archiving and disaster recovery services. It should also take into account the various kinds of portable electronic devices and storage media that company employees may be using. Once adopted, a records management plan should be reviewed periodically to make sure it continues to meet operational needs and legal requirements and to comply with best practices. Practice Note Keep in mind that any such plans will likely be discoverable.

There is no “controlling legal authority” to guide you in advising your client in establishing a records management plan. However, The Sedona Conference, through a working group of distinguished lawyer, judges, and IT professionals, has produced what for now is likely the gold standard for records management best practices: The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, 2d ed. (Nov. 2007). If you and your client follow those guidelines, your client likely will have everything it needs to have for a lawsuit and will have little exposure to the risk of sanctions for “spoliation” of evidence. It is advisable to consult the Sedona Guidelines (see Exhibit 25B).

25–8

ELECTRONIC DISCOVERY

§ 25.3

§ 25.3

PRESERVING AND PRODUCING ELECTRONIC DATA

§ 25.3.1 Preservation (a)

Obligation to Preserve

Courts will sanction a party that fails to preserve e-mail or other electronic documents after • a court ordered the party to preserve the subject documents, see, e.g., Linnen v. A.H. Robins Co., 10 Mass. L. Rptr. 189 (Super. Ct. 1999) (allowing spoliation inference to be given to jury where defendant failed to stop process of recycling backup tapes after it had been ordered to preserve documents); • a document request put the party on notice that the documents were subject to production, see, e.g., Lombardo v. Broadway Stores, Inc., 2002 WL 86810 (Cal. Ct. App. Jan. 22, 2002) (upholding sanctions where defendant destroyed computerized payroll data that was subject of plaintiff’s discovery request); or • the party was served with a complaint that put it on notice that the documents were relevant to certain allegations and claims, see, e.g., Computer Assocs. Int’l, Inc. v. Am. Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990) (issuing default judgment where defendant revised irreplaceable portions of source code after being served with complaint). Although the Rules of Civil Procedure apply only during litigation, courts are increasingly willing to sanction parties during litigation if they failed to preserve electronic documents before a claim was actually filed but after they became aware that litigation was likely. See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”); see also Capellupo v. FMC Corp., 126 F.R.D. 545, 548–53 (D. Minn. 1989) (court sanctioned defendant after finding that it engaged in knowing, intentional, and systematic destruction of relevant documents after and apparently because of awareness of potential claim); Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) (“The obligation to preserve evidence arises when the party has notice that the evidence is relevant to the litigation or when a party should have known that the evidence may be relevant to a future litigation.”); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (“The duty to preserve material evidence arises not only 25–9

§ 25.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

during litigation but also extends to the period before the litigation when a party reasonably should know that the evidence may be relevant to the anticipated litigation.”); Rambus, Inc. v. Infineon Techs. AG, 2004 WL 383590 (E.D. Va. Feb. 26, 2004), amended by 220 F.R.D. 264 (E.D. Va. 2004) (party that destroyed relevant e-mail as part of an otherwise valid automated document-purging program, despite being on notice of impending litigation, “is guilty of spoliation” even if it “did not institute its document retention policy in bad faith”). A party that routinely destroys electronic records pursuant to a consistently applied records management policy before any notice of litigation should be protected against sanctions. However, that policy must provide for suspension of destruction of relevant information in the event of litigation. See Stevenson v. Union Pac. R.R. Co., 354 F.3d 739 (8th Cir. 2004) (railroad destroying track maintenance records according to its policy prior to litigation held not subject to sanctions; however, destruction of track maintenance records and voice recordings after commencement of litigation gave rise to sanctions). Assertions of intention or inadvertence provide little cover if there is a court order to preserve. See United States v. Philip Morris USA, 2004 WL 1627252 (D.D.C. July 21, 2004) (company was fined $2.75 million and eleven employees were precluded as trial witnesses for failure to discontinue automated deletion of e-mails for two years after the court had entered a preservation notice). Companies considering implementing a document retention policy or otherwise deleting electronic data should consider the litmus test set forth in Lewy v. Remington Arms Co., 836 F.2d 1104 (8th Cir. 1988). In Lewy, the Eighth Circuit provided guidance to the trial court to help it determine on remand whether defendant Remington’s record retention policy had caused the prelitigation spoliation of documents. The Eighth Circuit noted that “a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy,” and instructed the trial court to consider on remand the following: • whether Remington’s record retention policy is reasonable considering the facts and circumstances surrounding the relevant documents, because a three-year retention policy may be sufficient for documents such as appointment books or telephone messages, but inadequate for documents such as customer complaints; • whether lawsuits concerning the complaint or related complaints have been filed, the frequency of such complaints, and the magnitude of the complaints; and • whether the document retention policy was instituted in bad faith because it was instituted in order to limit damaging evidence available to potential plaintiffs or because the party knew or should 25–10

ELECTRONIC DISCOVERY

§ 25.3

have known that the documents would become material at some point in the future. See Lewy v. Remington Arms Co., 836 F.2d at 1111–12; see also Reingold v. Wet ’N Wild Nevada, Inc., 944 P.2d 800, 802 (Nev. 1997) (adverse inference instruction appropriate where defendant amusement park’s document retention policy resulted in routine destruction of first aid logs at end of each season, long before subject complaint was filed, but also before statute of limitations had run on potential claims). Judge Scheindlin of New York’s Southern District echoed this theme in the fourth of her Zubulake decisions. See Zubulake IV, 220 F.R.D. 212 (S.D.N.Y. 2003). The court found that defendant UBS’s preservation obligation commenced not when the plaintiff filed her complaint in February 2002, or even when the plaintiff filed an EEOC claim in August 2002. Instead, the court determined that UBS’s preservation obligation began much earlier, in February 2001, because this was the date when internal UBS documents demonstrated that UBS was aware of the potential for Zubulake’s claim. The court’s analysis ran as follows: [T]he duty to preserve may have arisen even before the EEOC complaint was filed. Zubulake argues that UBS “should have known that the evidence [was] relevant to future litigation,” as early as April 2001, and thus had a duty to preserve it. She offers two pieces of evidence in support of this argument. First, certain UBS employees titled e-mails pertaining to Zubulake “UBS Attorney Client Privilege” starting in April 2001, notwithstanding the fact that no attorney was copied on the e-mail and the substance of the email was not legal in nature. Second, Chapin admitted in his deposition that he feared litigation from as early as April 2001: Q: Did you think that Ms. Zubulake was going to sue UBS when you received these documents? A: What dates are we talking about? Q: Late April 2001. A: Certainly it was something that was in the back of my head. 25–11

§ 25.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Merely because one or two employees contemplate the possibility that a fellow employee might sue does not generally impose a firm-wide duty to preserve. But in this case, it appears that almost everyone associated with Zubulake recognized the possibility that she might sue. For example, an e-mail authored by Zubulake’s co-worker Vinnay Datta, concerning Zubulake and labeled “UBS attorney client privilege [sic],” was distributed to Chapin (Zubulake’s supervisor), Holland and Leland Tomblick (Chapin’s supervisor), Vail (Zubulake’s former supervisor), and Andrew Clarke (Zubulake’s co-worker) in late April 2001. That e-mail, replying to one from Hardisty, essentially called for Zubulake’s termination: “Our biggest strength as a firm and as a desk is our ability to share information and relationships. Any person who threatens this in any way should be firmly dealt with . . . . Believe me that a lot of other [similar] instances have occurred earlier.” Thus, the relevant people at UBS anticipated litigation in April 2001. The duty to preserve attached at the time that litigation was reasonably anticipated. Zubulake IV, 220 F.R.D. at 216–17 (footnotes omitted). Thus, the duty to preserve relevant documents may arise from the moment when key players or counsel first begin to consider the possibility of litigation. The failure to implement a litigation hold at that time can lead to sanctions when the case eventually does start.

(b)

Scope of Preservation Obligation

Perhaps no court has looked more closely at what must be preserved than Judge Scheindlin did in her fourth and fifth Zubulake decisions. Judge Scheindlin carefully surveyed the law, outlined a comprehensive and broad array of preservation obligations, and then warned that because these preservation obligations have now “been addressed and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information.” Zubulake v. UBS Warburg LLC, No. 02 Civ. 1243 (SAS), 2004 U.S. Dist. LEXIS 13574, at *65–66 (S.D.N.Y. July 20, 2004) (“Zubulake V”). Perhaps, then, it would be wise to consider carefully the “national standards” articulated in that case and its precursors.

25–12

ELECTRONIC DISCOVERY

§ 25.3

Who Is Responsible for Preserving Documents? The duty to preserve documents starts with inside and outside counsel, see, e.g., GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 WL 335558 (S.D.N.Y. Mar. 30, 2000) (sanctions imposed for defendant’s failure to preserve and produce evidence, resulting in part from counsel’s deficient inquiries into defendant’s computer capacity); N.Y. Nat’l Org. for Women v. Cuomo, No. 93-Civ.-7146, 1998 WL 395320, at *2 (S.D.N.Y. July 14, 1998) (“Counsel have a duty to advise their client of pending litigation and of the requirement to preserve potentially relevant evidence.”); includes corporate officers and managers, see, e.g., Danis v. USN Communications, No. 98-C-7482, 2000 U.S. Dist. LEXIS 16900 (N.D. Ill. Oct. 23, 2000) (“corporate officers and managers can be held personally responsible for a corporation’s failure to preserve relevant evidence”); reaches down to the key players likely to have relevant documents, see Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *39–40 (“Because these ‘key players’ are the ‘employees likely to have the relevant information,’ it is particularly important that the preservation duty be communicated clearly to them.”); and in the end rests with the corporate entity as a whole, see Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *39–40 (noting that “at the end of the day . . . the duty to preserve and produce documents rests on the party”).

What Must Be Retained? “While a litigant is under no duty to keep or retain every document in its possession . . . it is under a duty to preserve what it knows, or reasonably should know, is relevant to the action, is reasonably calculated to lead to the discovery of admissible evidence, [or] is reasonably likely to be requested during discovery . . . .” Zubulake IV, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (quoting William T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984)).

For What Time Period Must Documents Be Retained? The preservation obligation extends to relevant documents that are “in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.” Zubulake IV, 220 F.R.D. at 218.

What Must a Party Do to Ensure that Relevant Documents Are Retained? “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure preservation of relevant documents.” Zubulake IV, 220 F.R.D. at 218. According 25–13

§ 25.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

to Judge Scheindlin in Zubulake, this means that a party must stop recycling all “accessible” backup tapes (meaning those tapes “actively used for information retrieval”) and all inaccessible backup tapes (that is, those tapes “typically maintained solely for the purpose of disaster recovery,” a definition that does not include backup tapes “actively used for information retrieval”) to the extent that those tapes contain relevant documents that are not otherwise available. Zubulake IV, 220 F.R.D. at 218. Judge Scheindlin continued that counsel have a duty to ensure that backup tapes are stored in “a safe place,” and that counsel “might be advised to take physical possession of backup tapes [in] cases involving a small number of relevant backup tapes.” Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *40–41. Practice Note Backup tapes are a “legacy” medium that is rapidly giving way to a new system of backup and disaster recovery, in which data is uploaded (sometimes every few minutes) over the Web to offsite vendors, who store the data in server banks. Tapes cannot be searched the way servers, hard drives, and solid state media can be, so recovering data from them can be laborious and expensive. Any such tapes that may be lying around unneeded should be destroyed before any duty to preserve them arises and turns them into an expensive discovery mountain your client will have to climb.

A party must also take steps to retain all documents “in the state that they existed” at the time that the duty to begin preserving documents arose, and to preserve any later-created documents. Zubulake IV, 220 F.R.D. at 218. A party is free to choose how this can be done, but it could be done by creating a “mirrorimage” of “the computer system” at the time the duty arose, and then cataloging any later-created documents in a separate electronic file. Zubulake IV, 220 F.R.D. at 218. Counsel are also obligated to instruct all key employees to produce electronic copies of relevant documents in their active files. Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *33–35.

What Must Counsel Do to Ensure that Relevant Documents Are Retained? You and the client should inventory all possible sources and forms of electronic data. The American Bar Association Litigation Section Final Amendments to Civil Discovery Standards (Aug. 2004) (available at http://www.abanet.org/litigation/ discoverystandards) give a fairly comprehensive list of items to consider: In identifying electronic data that parties may be called upon, in appropriate circumstances, to preserve 25–14

ELECTRONIC DISCOVERY

§ 25.3

or produce, counsel, parties and courts should consider: email (including attachments); word processing documents; spreadsheets; presentation documents; graphics; animations; images; audio, video and audiovisual recordings; and voicemail, . . . [and] the following platforms in the possession of the party or a third person under the control of the party (such as an employee or outside vendor under contract): databases; networks; computer systems, including legacy systems (hardware and software); servers; archives; back up or disaster recovery systems; tapes, discs, drives, cartridges and other storage media; laptops; personal computers; internet data; personal digital assistants; handheld wireless devices; mobile telephones; paging devices; and audio systems, including voicemail; and whether potentially producible electronic data may include data that have been deleted but can be restored. Learn how your client’s information systems work together internally and how those systems communicate with the outside world. Find out where and how information exits the organization and is stored offsite. For example, the company may have a direct electronic communication link with outside customers or vendors, including vendors of backup and disaster recovery services. When you finish your inventory, stay in regular communication with the relevant players and the IT department so that document preservation issues can be addressed quickly as the need arises. It may be appropriate to establish organization-wide policies for the preservation, storage, and recycling of electronic data. Consider preparing an e-discovery response plan before e-discovery even begins. This plan should discuss how best to configure the system to minimize risk and diminish costs. Practice Note Keep in mind that any such plan will likely be discoverable.

If a duty to preserve or produce electronic evidence arises before you can do a full-blown inventory, find out as quickly as possible what electronic documents your client has and where and how and by whom they are maintained, and be sure to put a litigation hold in place as soon as possible. Sample questionnaires for interviews of business and technology personnel are attached as Exhibits 25C and 25D. 25–15

§ 25.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Practice Note The identification, recovery, and analysis of potentially recoverable computer data—the field of “computer forensics”—may be considerably more complex and costly than normal file preservation and backup. Especially if litigation is pending, you should seek the help of a qualified expert, with whom you should work to determine what data may be subject to preservation and production, what can and should be preserved, and the importance of ensuring that data is not altered during preservation and collection.

What Are a Party’s Continuing Duties Once a Litigation Hold Is Put in Place? “A party’s discovery obligations do not end with the implementation of a ‘litigation hold’—to the contrary, that’s only the beginning.” Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *31. Counsel must “oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents.” Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *32. Counsel must “ensure that (1) all relevant information (or at least all sources of relevant information) is discovered; (2) that relevant information is retained on a continuing basis; and (3) that relevant non-privileged material is produced to the opposing party.” Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *32. Counsel’s duties include the following: • Become “fully familiar” with the client’s “data retention architecture” and “document retention policies.” This entails speaking with information technology personnel “who can explain systemwide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycling policy.” Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *33. • Interview each of the “key players” to understand how they stored information and communicate the preservation obligation to them in clear terms. Where it is not feasible to speak with each of the key players because, for example, of the company’s size, “counsel must be more creative” in ensuring that this obligation is met. For example, counsel could create a broad list of search terms, run a systemwide keyword search for a certain time frame, and retain any documents found. Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *33–35. • Take reasonable steps to ensure that the client complies with the litigation hold, including periodically reissuing the litigation hold 25–16

ELECTRONIC DISCOVERY

§ 25.3

so that it is “fresh in the minds of all employees.” It is “not sufficient to notify all employees . . . and expect that the party will then retain and produce all relevant information.” A party “cannot reasonably be trusted to receive the ‘litigation hold’ instruction once and to fully comply with it without the active support of counsel.” Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *38–39.

(c)

Production

The obligation to produce electronic documents is set forth in Super. R. Civ. P. 34 and its federal equivalent. Rule 34 defines discoverable documents to include “data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form.” This wording comes from the 1970 amendment to Federal Rule 34, whose Advisory Committee Note makes it clear that the amendment was intended to reach computerized data that might have to be “translated” into usable form and to require the respondent, if necessary, to use its computer to provide that translation.”). Rule 34(b)’s directive that the respondent produce shall documents “as they are kept in the usual course of business” bolsters this interpretation: most organization nowadays keep their records in electronic form, often in no other way. Rule 34 also permits the requesting party to “inspect and copy, test or sample any tangible things which constitute or contain matters within the scope of” Rule 26. Computers and their hard drives, network servers, and all kinds of portable electronic devices easily fit that description. A party must diligently search for relevant and responsive electronic documents, and failure to do so may result in orders for sanctions or for inspection of computer resources by opposing parties. See, e.g., Metro. Opera Ass’n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int’l Union, 212 F.R.D. 178 (S.D.N.Y. 2003); Tulip Computers Int’l v. Dell Computer Corp., 52 Fed. R. Serv. 3d (West) 1420 (D. Del. 2002).

§ 25.3.2 Sanctions for Breach of the Duty to Preserve or Produce Breach of the duty to preserve and produce relevant evidence will expose the offending party to the full range of sanctions the rules of procedure provide. The more egregious the offending party’s conduct, and the greater the prejudice caused, the tougher the sanction will be. Conversely, courts are less likely to award sanctions if the destruction has been inadvertent, especially if no prejudice 25–17

§ 25.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

is shown. See N.Y. Nat’l Org. for Women v. Cuomo, No. 93-Civ.-7146, 1998 WL 395320, at *2–3 (S.D.N.Y. July 14, 1998) (rejecting request for sanctions against defendant for destroying computer databases because there was little evidence of bad faith and plaintiffs were not prejudiced by the loss). The power to sanction a party for failure to preserve or make timely production of electronic evidence arises from the rules of procedure and from the court’s inherent power to manage its affairs. See Super. R. Civ. P. 37(b)(2) (setting forth an array of sanctions that may be entered against a party that fails to comply with a discovery order); see also Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106–07 (2d Cir. 2002) (“Even in the absence of a discovery order, a court may impose sanctions on a party for misconduct in discovery under its inherent power to manage its own affairs.”). Ethics Commentary Rule 3.4(a) of the Rhode Island Rules of Professional Conduct provides that a lawyer shall not “unlawfully alter, obstruct another party’s access to evidence or unlawfully destroy, or conceal a document or other material having potential evidentiary value” and shall not “counsel or assist another person” to do so. Comment 2 makes it clear that the Rule applies to all evidence, “including computerized information.” The Rules do not define the term “unlawfully.”

From the broad array of sanctions available to it, a trial court has broad discretion to fashion the appropriate penalty. See Reilly v. Natwest Mkts. Group, Inc., 181 F.3d 253, 267 (2d Cir. 1999) (“Whether exercising its inherent power, or acting pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery abuse.”). The sanctions available to the court include the following: • delaying discovery or trial, see Super. R. Civ. P. 37(b)(2)(C); see also Pennar Software Corp. v. Fortune 500 Sys. Ltd., 2001 WL 1319162 (N.D. Cal. Oct. 25, 2001) (court sanctioned defendant for electronic discovery abuses by extending discovery period and requiring payment of attorney fees); • requiring the offending party to pay the costs and fees incurred by the requesting party related to the offending conduct, see Super. R. Civ. P. 37(b)(2); • precluding the offender from supporting or opposing certain claims or defenses or from offering designated evidence, see Super. R. Civ. P. 37(b)(2)(B); see also United States v. Philip Morris 25–18

ELECTRONIC DISCOVERY

§ 25.3

USA, Inc., 2004 WL 1627252 (D.D.C. July 21, 2004) (where defendants continued to delete relevant e-mail for two years after court ordered preservation, court precluded defendants from calling a key employee and ordered defendants to pay costs relating to the spoliation and an additional $2.75 million monetary sanction); • reading an adverse inference instruction to the jury, see, e.g., Anderson v. Crossroads Capital Partners, L.L.C., 2004 WL 256512 (Feb. 10, 2004); • treating matters or facts related to the offending conduct as admitted for the purposes of the action, see Super. R. Civ. P. 37(b)(2)(A); • declaring a mistrial, see Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002); • striking pleadings, see Super. R. Civ. P. 37(b)(2)(C); or • dismissing all or part of the action or entering a default judgment the offender, see Super. R. Civ. P. 37(b)(2)(C). The court will generally try to make the parties whole, putting the requesting party in the position it would have enjoyed had the violation not occurred, and preventing the offender from benefiting from its conduct. See, e.g., Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *51 (court notes that “a major consideration in choosing an appropriate sanction” for addressing failure to preserve e-mail “is to restore Zubulake to the position that she would have been in had UBS faithfully discharged its discovery obligations”); GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 WL 335558, at *1 (S.D.N.Y. Mar. 30, 2000) (discovery sanctions “ensure that a party will not benefit from its own failure to comply”). These sanctions are also intended to serve as a specific deterrent with respect to the subject case and as a general deterrent to prevent similar conduct in other cases. See, e.g., GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 WL 335558, at *1. Courts generally reserve the extreme sanctions of dismissal or default for particularly egregious offenses that cause significant prejudice to the aggrieved party. Unless both factors are present, courts will typically invoke less drastic sanctions. See, e.g., Rice v. City of Chicago, 333 F.3d 780 (7th Cir. 2003) (“[I]t is well settled in this circuit that the ultimate sanction of dismissal should be invoked only in extreme situations when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable.”); Wiginton v. Ellis, 2003 WL 22439865 (N.D. Ill. Oct. 27, 2003) (“[Default judgments and dismissals] are harsh sanctions that should only be employed ‘in extreme situations.’”). 25–19

§ 25.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Courts are increasingly finding that these extreme considerations are met when a party has destroyed e-mail or other electronic data, even when that destruction came as the result of the application of supposedly “routine” recycling processes. See, e.g., Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 747–49 (8th Cir. 2004) (summary judgment entered against wrongful death railroad defendant because it destroyed voice recording pursuant to routine recycling policy after it knew that litigation was likely); see also Procter & Gamble Co. v. Haugen, 2003 WL 22080734 (D. Utah Aug. 19, 2003) (court granted defendant’s motion to dismiss where plaintiff informed defendants of their duty to preserve computer evidence crucial to the case, but neglected to impose a similar duty upon itself, resulting in the destruction of e-mail records of five key employees); CenturyML Cable Corp. v. Carrillo, 43 F. Supp. 2d 176 (D.P.R. 1998) (default judgment entered against defendant who discarded laptop computer and other records in an intentional effort to destroy proof of liability and prevent plaintiff from taking steps to prevent future thefts); Long Island Diagnostic Imaging v. Stony Brook Diagnostic Assocs., 286 A.D.2d 320 (N.Y. App. Div. 2001) (court dismissed defendants’ counterclaims and third-party complaint after finding that defendants had purged their computer databases in violation of court order and had produced compromised and unusable backup tapes); cf. Kucala Enters. Ltd. v. Auto Wax Co., 2003 WL 22433095 (N.D. Ill. Oct. 27, 2003) (where plaintiff used computer software called “Evidence Eliminator” to delete files the night before a scheduled discovery inspection, court upheld magistrate’s recommendation that plaintiff bear expenses flowing from the discovery misconduct, but rejected magistrate’s recommendation that plaintiff’s claims be dismissed with prejudice). In situations where a dismissal or default judgment might be too extreme, courts may instead draw an adverse inference (or permitting or requiring the jury to do so) that the missing evidence would have been unfavorable to the party responsible for its destruction. See Anderson v. Crossroads Capital Partners, L.L.C., 2004 WL 256512 (D. Minn. Feb. 10, 2004) (where plaintiff used a data purging software application after plaintiff agreed not to “delete any existing files,” court found that plaintiff’s “exceedingly tedious and disingenuous claim of naiveté” defied “the bounds of reason,” but was sufficient only to warrant an adverse inference jury instruction and not dismissal of the case); Beard Research v. Michael J. Kates, ASDI, Inc., 2009-DE-0605.038 (Del. Ch. 2009) (drew adverse inferences, but refused to enter default judgment, for reckless destruction of laptop hard drive); Triton Construction Co., Inc. v. Eastern Shore Electrical Services, LLC, 2009-DE-0602.502 (Del. Ch. 2009) (drew adverse inferences from former employee’s destruction of home computer and thumb drive used to prepare bids for a competing contract).

25–20

ELECTRONIC DISCOVERY

§ 25.3

In general, a court will order such an instruction where it finds that • evidence was destroyed • at a time when there was a duty to preserve, • with a “culpable” state of mind (meaning with conduct that rises to the level of negligence, gross negligence, or recklessness), which • prejudiced the requesting party because the evidence would have supported the requesting party’s case or would otherwise have been of a nature alleged by the requesting party. Bad faith or willful destruction of documents may itself amount to prima facie evidence that the destroyed documents would have been harmful to the offender. See Zubulake V, 2004 U.S. Dist. LEXIS 13574, at *27–28 (court discusses standard for permitting adverse inference); Wiginton v. Ellis, 2003 WL 22439865 (N.D. Ill. Oct. 27, 2003) (to determine if it is appropriate to draw an inference that destroyed documents would have favored plaintiffs, court must look at facts surrounding destruction to determine if reason for destruction shows bad faith); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002) (“The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.”). At least one court has held that the intentional destruction of electronic documents in a civil suit can constitute a criminal violation. See United States v. Lundwall, 1 F. Supp. 2d 249, 250 (S.D.N.Y. 1998) (holding that defendants who allegedly withheld and destroyed documents sought during discovery of civil action could be prosecuted for such conduct under obstruction of justice statute, 18 U.S.C. § 1503). The Sedona Conference advises courts to use caution before sanctioning producing parties for electronic information destruction. See The Sedona Principles Addressing Electronic Document Production, 2d ed. (June 2007) (“Sedona Principles”), at 70–73, available at http://www.thesedonaconference.org/ dltForm?did=TSC_PRINCP_2nd_ed_607.pdf. The authors argue that, due to the complexity of electronic discovery issues, there exists a potential for good-faith errors or omissions in the process of preserving and producing electronic information, and therefore that sanctions should be considered only if there was “an intentional or reckless failure to preserve and produce” at a time when there was “a clear duty to preserve” and if the party seeking sanctions proves that there was a “reasonable likelihood” that the failure to preserve has caused “material” prejudice. Sedona Principles, at 70. The authors further suggest that the court should not ordinarily impose sanctions “unless the responding parties have violated 25–21

§ 25.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

specific restrictions set forth in a court order.” Sedona Principles, at 47–50. The authors further suggest that mere negligence should not be enough to support an award of sanctions, and that “the focus should be on culpability.” Sedona Principles, at 71. The 2006 amendment to Fed. R. Civ. P. 37 creates a “safe harbor” that does not go quite as far as the Sedona Principles recommend—indeed, not even as far as the wording of the Rule might suggest to the unwary. Rule 37(e) provides as follows: Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system. The Advisory Committee Notes to the amendment confirm that “routine operation” of computer systems “includes the alteration and overwriting of information, often without the operator’s specific direction or awareness . . . .” Presumably that would include operations that, unless overridden, automatically delete emails and other data over a certain age. Any party or lawyer who relies on the safety of this harbor to allow such “routine operations” to continue unabated, even as faint litigation storm clouds gather on the horizon, is likely to get swamped. As the Advisory Committee Note also makes clear, the rule’s “good faith” requirement in effect means that a party is protected against sanction only for routine alteration or destruction that occurs before any duty to preserve arises. The rules of procedure do not specify when that duty arises, leaving that to common law, regulation, and court order. Unfortunately, just when the duty to preserve springs into being is not always easy to define, as some parties have recently learned to their grief. See Adams v. Dell, 2009 WL 910801, No. 1:05-CV-64 (D. Utah Mar. 30, 2009); compare Hynix Semiconductor Inc. v. Rambus, Inc., 591 F. Supp. 2d 1038 (N.D. Cal. 2006), with Micron Tech. Inc. v. Rambus, Inc., 255 F.R.D. 135 (D. Del. 2009). The safest approach is to order a litigation hold as soon as there is even the faintest reason to fear (or contemplate) litigation over a matter, and bear in mind that it can take time to implement a litigation hold, once ordered, especially in a large and complex organization.

25–22

ELECTRONIC DISCOVERY

§ 25.4

§ 25.4

COLLECTING ELECTRONIC INFORMATION FROM ADVERSARIES AND THIRD PARTIES

§ 25.4.1 Putting Your Adversary on Notice If you believe your adversary may have relevant electronic information, consider putting it on written notice to locate and preserve the information. Use the following guidelines: • Craft the notice carefully. Tell your adversary what you want, where it might be, who might control it, and why you are entitled to it. • Describe fully the information you want. Be as specific as you would be in a document request, so that your adversary will be unable to deny later knowing what had to be preserved. • Identify possible sources (such as PCs, servers, and storage media) and forms (such as word processing documents, spreadsheets, and e-mail) of electronic information. Mention specifically any portable devices you know your adversary’s key people use that may contain relevant information. • Remind your adversary about its duty to preserve and produce electronic information and warn about the risks of failing to do so. If nobody has sued yet, mention that the duty to preserve electronic information can arise well before suit is filed and that the existence of “routine computer operations” offers no excuse for failure to preserve. Sample notices are attached as Exhibits 25E and 25F.

§ 25.4.2 Obtaining Order to Preserve Evidence If you suspect the adversary is likely to alter or destroy relevant electronic information to avoid production, seek an order compelling preservation, Armstrong v. Executive Office of the President, 821 F. Supp. 761 (D.D.C.), rev’d, 1 F.3d 1274 (D.C. Cir. 1993), or permitting the search and seizure of computers and storage media, Sega Enterprises, Ltd. v. MAPHIA, 948 F. Supp. 923, 927 (N.D. Cal. 1996) (based on Sega’s ex parte showing of defendant’s computer piracy, Sega permitted to enter defendant’s premises, seize computers, copy data, and delete pirated software); Gates Rubber Co. v. Bando Chem. Indus., 167 25–23

§ 25.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

F.R.D. 90 (D. Colo. 1996) (plaintiff granted prelitigation site inspection order based on showing that defendant was destroying computer files in anticipation of litigation). A model preservation order is attached as Exhibit 25G. Ex parte relief may be available if you can prove that there is a risk of destruction. See Linnen v. A.H. Robins Co., 10 Mass. L. Rptr. 189 (Super. Ct. 1999) (plaintiff obtained ex parte order preventing destruction of electronic and all other evidence).

§ 25.4.3 Using Formal Discovery Devices The wise lawyer will seek an early meeting with opposing counsel to try to reach agreement on the preservation of electronic information, as well as the disclosure and discovery of such information, including the timing and sequence of discovery and the form in which the information will be produced, as well as how to deal with any issues of privilege. This is an explicit requirement of Federal Rule 26(f), which has no counterpart in the Superior Court rules. Nonetheless, when complex disputes arise over discovery of electronic information, judges are likely to look kindlier upon the lawyer who has tried in good faith to reach agreement than upon one who has not. If formal discovery is necessary, you can use all the traditional methods to discover electronic information.

(a)

Interrogatories

You can use interrogatories to identify individuals who know about electronic information and to learn about the equipment, systems, and practices your adversary uses to create, store, and transfer electronic information . Ask who searched for, located, preserved, and produced electronic information responsive to your document requests, and what steps they took to do so. The answers will tell you whom to depose—and what to ask them—if you suspect the adversary may not have complied with its obligations to produce electronicinformation. Such questions also put your adversary on notice that you will not let it get away with incomplete or shoddy production. Find out also who is the person most knowledgeable about your adversary’s IT system. At some point you may want to depose that person under Rule 30(b)(6). Also ask for a description of all systems used to create, store, and transfer electronic data, including a description of all relevant hardware and software. That will tell you where in the system relevant and responsive electronic information may be kept and what methods will be needed to obtain it. 25–24

ELECTRONIC DISCOVERY

§ 25.4

Finally, ask about storage practices: • What are the methods for preserving, backing up, and restoring electronic information? • How long is electronic information retained? • How long have such systems been in place? • Is there a written electronic information management and retention plan? Information about electronic information retention practices will tell you whether older information may still be available, whether it is reasonably accessible, and whether any immediate action needs to be taken to protect the information from being recycled.

(b)

Document Requests

In using document requests to obtain electronic information, specify exactly what you want, who might have it, and where it might be, just as you did in the preservation notice. Consult with your own client to help craft targeted requests. It may be worthwhile to enlist the help of a computer forensics expert, if the amount in controversy would justify the expense. It may be useful to get not only electronic data, but also documents that refer to electronic data. Ask for documents that list, describe, or depict the relevant technical hardware, software, systems, backup procedures, and storage practices. You may also wish to inspect a tangible thing: your adversary’s computer system. Courts have permitted parties to conduct such inspections in appropriate circumstances. See, e.g., White v. Graceland College Ctr. for Professional Dev. & Lifelong Learning, 2009 U.S. Dist Lexis 22068 (D. Kan. 2009) (allows partial “mirror-imaging” of defendant’s computers due to inconsistencies in discovery responses or failure to produce relevant information); Quotron Sys., Inc. v. Automatic Data Processing, Inc., 141 F.R.D. 37 (S.D.N.Y. 1992) (ex parte order permitting raid in software piracy case). Such inspection might be just a simple external examination of all hardware and the physical plant or as intrusive as the examination and imaging of hard drives. For an excellent discussion of the circumstances where it might be appropriate to order “mirror-imaging” of a party’s hard drive, and the protocol for doing so with due attention to authentication of information, as well as protection of confidential or privileged information, see In re Honza, 242 S.W.3d 578 (Tx. App. 2008).

25–25

§ 25.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

In cases in which requested discovery has not been forthcoming, a court may allow entry and inspection. Tulip Computers Int’l v. Dell Computer Corp., 52 Fed. R. Serv. 3d 1420 (D. Del. 2002) (after several failures to answer discovery requests, court granted plaintiff’s request to depose database administrator onsite and to investigate and search defendant’s databases and data warehouse). Where discovery has, in fact, been forthcoming, but the requesting party is merely dissatisfied with the outcome, a court may not, without more, permit inspection. In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003) (absent any finding by District Court that Ford had failed to comply with original discovery request, Appeals Court found that District Court had abused its discretion in allowing inspection without hearing or response on motion to compel). Practice Note Your adversary will surely resist any request to search its computer system. Be ready with a motion that demonstrates good cause for the requested relief and proposes a sufficiently narrow inspection, by a suitably qualified expert, governed by a detailed inspection protocol that assures the integrity of the adversary’s data and protects against disclosure of confidential or privileged information.

In developing your request for production, work with your expert to determine just how and in what format you want to receive your opposing party’s electronic data. You can choose between paper, electronic copies (either PDF or “native format”), or forensic electronic images. These three options are quite different from one another. See Pub. Citizen v. Carlin, 2 F. Supp. 2d 1, 13–14 (D.D.C. 1997) (“Simply put, electronic communications are rarely identical to their paper counterparts; they are records unique and distinct from printed versions of the same records.”) (citation omitted), rev’d, 184 F.3d 900 (D.C. Cir. 1999); Nat’l Union Elec. Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1257 (E.D. Pa. 1980) (court orders production of computer tape in addition to paper equivalent). Practice Note Current Federal Rule 34(b)(1)(C) expressly permits you to “specify the form or forms in which electronically stored information is to be produced,” and Rule 34(b)(2)(D) allows your adversary in its response to object to your specification and in the absence of specification requires the adversary to state its intended form for production. Rhode Island Rule 34 does not contain these provisions, but it does require the respondent to produce documents and data compilations “translated, if necessary, . . into reasonably usable form.” At least arguably Rhode Island Rule 34 includes by implication the provisions that are now explicit in the Federal Rule. Wise counsel will attempt to agree on these points. If you ask for paper (or do not

25–26

ELECTRONIC DISCOVERY

§ 25.4

specify a production format), printed paper “hard copies” of responsive electronic documents may be all you will get. That may be all you want or need, if the production is particularly small, if you do not have the software or equipment to handle electronic data, or if you simply are not interested in obtaining the information electronically. The drawbacks of paper, however, are many. Paper documents take more storage space and are less portable than digital versions of the documents. Paper documents are harder to organize and more laborious to copy than digital ones, and you cannot search them electronically the way you can digital documents. Also, it is usually easier and cheaper to produce electronic documents in digital form than in paper, so even if you ask for paper, do not be surprised to receive them in digital PDF format, with a snide suggestion from your adversary that if you want the documents in hard copy, you can print them yourself!

If you choose to request production in digital form—which you really should— then you have a choice of digital format. Text documents, e-mails, spreadsheets, photographs—all the common “stuff” of litigation document discovery—can be produced either in “native format”—the file structure defined by the word processing or other software application that created the document—or in “portable document format” (PDF). (PDF is the standard format for electronic filing in federal courts and most state courts that have adopted electronic filing.) Conversion of documents from native format to PDF—quite easy in most cases— results in files that are essentially images of the documents as they would appear if printed on paper. These PDF documents will typically be text searchable, or at least you can easily make them so by using optical character recognition (OCR) software. Practice Note If you want documents produced in PDF format, you should specify “unrestricted PDF format.” That will thwart a puckish adversary who might be tempted to give you PDFs with annoying security restrictions that might impair your ability to copy, print, or search the document.

You could instead ask for production in “native format.” That would provide you with a copy of the digital file that you can open and use with the software application that created it. It potentially provides more information than would paper or a PDF file, such as the file’s metadata and “slack space,” some of which may be accessible to a typical user, but much of which is retrievable only by persons with advanced technical training. Metadata can sometimes reveal the following: • authors,

25–27

§ 25.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• recipients, • collaborators, • creation dates, • drafts, • embedded comments and edits, • relationships with other documents, • supporting programs and formulae, and • the hardware and software used to create the document. See, e.g., White v. Graceland College Ctr. for Professional Dev. & Lifelong Learning, 2009 U.S. Dist. Lexis 22068 (D. Kan. 2009) (compels production of e-mails and attachments in native format to permit expert to examine metadata regarding creation dates). However, the metadata in most documents will prove uninteresting and irrelevant to the issues in a typical case. Therefore, routine inspection of metadata in run-of-the-mill documents will prove a waste of time and money. Metadata examination may prove useful mainly in the atypical case, where the authenticity or exact provenance of a key document may be reasonably disputed. Practice Note If you want your adversary’s “native format” production to include metadata, you should so specify. That is because a file that is in “native format” can be “scrubbed,” using now commonly available software, to strip the file of its metadata and slack space. For example, it is increasingly common for law firms to use scrubbing software to strip metadata from e-mail attachments, to avoid inadvertent disclosure, through metadata, of protected or privileged information. There is room for argument whether metadata is an integral part of a “document” or “record” or something separate and distinct. See, e.g., Lake v. City of Phoenix, 207 P.3d 725 (Az. App. 2009) (metadata not part of a digital “record”—a police report—and therefore not subject to production under a public access statute; dissent argues otherwise). A specific request for the entire document or file, including metadata, will put your adversary to the burden of either complying or objecting.

25–28

ELECTRONIC DISCOVERY

§ 25.4

Electronic copying requires the following: • that the requesting party have available the computer software applications necessary to open, search, and view the files; • careful handling by both parties to ensure that file dates and other metadata are not altered in the copying; and • agreement by both parties to a protocol for identifying and authenticating files when they are printed for use in pleadings, depositions, hearings, and trials. Forensic imaging—the digital copying, “bit by bit,” of an entire hard drive, disk, or tape—captures an even more information than does copying of files. Imaging captures not just active files, but also system data and any deleted files and file fragments that have not been irretrievably written over with newly added data.

25–29

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

25–30

ELECTRONIC DISCOVERY

EXHIBIT 25A—E-Discovery Bibliography Every litigator’s e-bookshelf should contain the following resources, all available for download free of charge at the indicated Web sites. • The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, 2d ed. (Nov. 2007) (“Sedona Guidelines”), available at http://www .thesedonaconference.org/dltForm?did=Guidelines.pdf. • The Sedona Principles Addressing Electronic Document Production, 2d ed. (June 2007) (“Sedona Principles”), available at http://www.thesedonaconference.org/dltForm?did=TSC_PRINCP _2nd_ed_607.pdf. • The Sedona Conference Glossary: E-Discovery & Digital Information Management, 2d ed. (Dec. 2007) (“Sedona Glossary”) (a highly useful and fairly comprehensive glossary of technical terms), available at http://www.thesedonaconference.org/ dltForm?did=TSCGlossary_12_07.pdf. • Conference of Chief Justices, Guidelines For State Trial Courts Regarding Discovery Of Electronically-Stored Information (Aug. 2006), available at http://www.ncsconline.org/images/ EDiscCCJGuidelinesFinal.pdf. • American Bar Association Standards Relating to Civil Discovery (Aug. 2004), available at http://www.abanet.org/litigation/ discoverystandards. • ACTL/IAALS Official Final Report (Mar. 2009), available at http://www.actl.com/AM/Template.cfm?Section=Home&template =/CM/ContentDisplay.cfm&ContentID=4053. The following books, available from the ABA, are also useful: • Nelson, et al., The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines (ABA 2006) (includes CDROM with sample letters, interrogatories, requests for production, etc.). • Barkett, The Ethics of E-Discovery (ABA 2009).

25–31

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

25–32

ELECTRONIC DISCOVERY

EXHIBIT 25B—Excerpt from the Sedona Guidelines 1.

2.

3.

An organization should have reasonable policies and procedures for managing its information and records. a.

Information and records management is important in the electronic age.

b.

The hallmark of an organization’s information and records management policies should be reasonableness.

c.

Defensible policies need not mandate the retention of all information and documents.

An organization’s information and records management policies and procedures should be realistic, practical and tailored to the circumstances of the organization. a.

No single standard or model can fully meet an organization’s unique needs.

b.

Information and records management requires practical, flexible and scalable solutions that address the differences in an organization’s business needs, operations, IT infrastructure and regulatory and legal responsibilities.

c.

An organization must assess its legal requirements for retention and destruction in developing an information and records management policy.

d.

An organization should assess the operational and strategic value of its information and records in developing an information and records management program.

e.

A business continuation or disaster recovery plan has different purposes from those of an information and records management program.

An organization need not retain all electronic information ever generated or received. a.

Destruction is an acceptable stage in the information life cycle; an organization may destroy or delete electronic information when there is no continuing value or need to retain it.

b.

Systematic deletion of electronic information is not synonymous with evidence spoliation. 25–33

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

4.

c.

Absent a legal requirement to the contrary, organizations may adopt programs that routinely delete certain recorded communications, such as electronic mail, instant messaging, text messaging and voice-mail.

d.

Absent a legal requirement to the contrary, organizations may recycle or destroy hardware or media that contain data retained for business continuation or disaster recovery purposes.

e.

Absent a legal requirement to the contrary, organizations may systematically delete or destroy residual, shadowed or deleted data.

f.

Absent a legal requirement to the contrary, organizations are not required to preserve metadata; but may find it useful to do so in some instances.

An organization adopting an information and records management policy should also develop procedures that address the creation, identification, retention, retrieval and ultimate disposition or destruction of information and records. a.

Information and records management policies must be put into practice.

b.

Information and records management policies and practices should be documented.

c.

An organization should define roles and responsibilities for program direction and administration within its information and records management policies.

d.

An organization should guide employees regarding how to identify and maintain information that has a business purpose or is required to be maintained by law or regulation.

e.

An organization may choose to define separately the roles and responsibilities of content and technology custodians for electronic records management.

f.

An organization should consider the impact of technology (including potential benefits) on the creation, retention and destruction of information and records.

g.

An organization should recognize the importance of employee education concerning its information and records management program, policies and procedures.

25–34

ELECTRONIC DISCOVERY

5.

h.

An organization should consider conducting periodic compliance reviews of its information and records management policies and procedures, and responding to the findings of those reviews as appropriate.

i.

Policies and procedures regarding electronic management and retention should be coordinated and/or integrated with the organization’s policies regarding the use of property and information, including applicable privacy rights or obligations.

j.

Policies and procedures should be revised as necessary in response to changes in workforce or organizational structure, business practices, legal or regulatory requirements and technology.

An organization’s policies and procedures must mandate the suspension of ordinary destruction practices and procedures as necessary to comply with preservation obligations related to actual or reasonably anticipated litigation, government investigation or audit. a.

An organization must recognize that suspending the normal disposition of electronic information and records may be necessary in certain circumstances.

b.

An organization’s information and records management program should anticipate circumstances that will trigger the suspension of normal destruction procedures.

c.

An organization should identify persons with authority to suspend normal destruction procedures and impose a legal hold.

d.

An organization’s information and records management procedures should recognize and may describe the process for suspending normal records and information destruction and identify the individuals responsible for implementing a legal hold.

e.

Legal holds and procedures should be appropriately tailored to the circumstances.

f.

Effectively communicating notice of a legal hold should be an essential component of an organization’s information and records management program.

g.

Documenting the steps taken to implement a legal hold may be beneficial.

25–35

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

h.

If an organization takes reasonable steps to implement a legal hold, it should not be held responsible for the acts of an individual acting outside the scope of authority and/or in a manner inconsistent with the legal hold notice.

i.

Legal holds are exceptions to ordinary retention practices and when the exigency underlying the hold no longer exists (i.e., there is no continuing duty to preserve the information), organizations are free to lift the legal hold.

25–36

ELECTRONIC DISCOVERY

EXHIBIT 25C—Sample Electronic Discovery Outline for Preparing or Deposing a Business Witness SAMPLE ELECTRONIC DISCOVERY OUTLINE FOR PREPARING/DEPOSING BUSINESS WITNESS Charles R. Kellner Daticon, Inc. Norwich, CT This document is not legal advice and must only be used by attorneys as an educational guide. The following may help elicit how computers are used in the workplace, how and where information is stored, what computer materials were reviewed or considered in preparation for production, and what may have been overlooked. These questions are designed for the “ordinary” witness. If you have time to use them systematically (e.g., take them from specific individual use to general departmental or company use), they may over several witnesses elicit the same or better results than an information technology witness. Not all questions will be useful or relevant. 1.

Have you used computers for your work?

2.

What computers have you used? A desktop? A laptop? A PDA or a smart phone? Anything else?

3.

Your desktop or laptop, is it a PC or Mac, or something else?

4.

Have you changed computers or work locations during the relevant time period? a.

(If so, follow up with computers no longer used, how they were disposed of or to whom they were transferred, and what is the deponent’s understanding of what happened to it and the data.)

5.

Do you share or have you shared a computer with anyone else?

6.

Do you know of any other computers besides yours that have information about the case? What computers? Who has used them, and when? How were they used? What information do they have?

7.

What applications or computer programs do you use? (Going through the list will elicit how the deponent uses the computer, what kinds of files have been made, and where they might be. It will also give good background information on how computers are used in the deponent’s workplace.)

25–37

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

8.

For each, can you tell us the name of the software and the version, what you use the program for, and is there data relating to the case? If so, what files, and where are the files stored? Are they on the computer hard drive, on a network, on a diskette, backed up somewhere?

9.

Below are software types with some examples. (Be selective, as not all will be relevant.) a.

E-mail (Microsoft Outlook, cc mail, Notes, GroupWise, Eudora, AOL, etc.) i.

b.

E-mail usage inside and outside the company

Word Processing (Microsoft Word, WordPerfect) i.

Is there a document management system that stores files, or automatically names or numbers them? Do you know what it is called? Do you fill out a profile page or form to define the subject or assign keywords?

ii. Do you have a way of identifying or preserving separate versions of a document? c.

Spreadsheet (Microsoft Excel, Lotus 1-2-3)

d.

Presentation software (PowerPoint)

e.

Fax software

f.

Calendar or PDA software (Outlook, Scheduler, Organizer, Calendar)

g.

Financial planning/accounting software

h.

Project Planning (Microsoft Project)

i.

Design or CAD software

j.

Software development/version control software

k.

Charting software (Visio)

l.

Desktop publishing (Microsoft Publish, PageMaker)

m. Graphic Design (Photoshop, Corel Draw)

25–38

ELECTRONIC DISCOVERY

n.

Database software (Microsoft Access, Filemaker, company database software)

o.

Contact Management (ACT, Goldmine)

p.

Groupware (Lotus Notes)

q.

Web browsers (Internet Explorer, Firefox)

r.

Utilities (Norton)

s.

Firm or industry specific software

t.

Firm or industry specific electronic forms

u.

Firm or industry specific news or other information resources

10. How did you get your computers? Whom do you call for hardware help? Whom do you call for software help? 11. How do you, or did you, get trained? Apart from formal or classroom training, how do you know what policies there are on how and when to use a specific software or application? 12. What drive letters do you have on your computers? 13. Are some of these network drives? Do you know which they are? 14. Which drives are hard drives or removable disk drives on your computer? 15. Do you use diskettes, tapes, online storage, hard drive backups, CDs, DVDs, Jaz or Zip disks? For what? Where are they? 16. What icons are on your desktop? 17. Do you have access to the Internet? a.

If so, is it through a modem you have connected to your computer, and you dial, or do you connect through the network?

b.

What services or sites do you use on the Internet? Have you visited any sites relating to issues in this case?

c.

Who is your Internet Service Provider?

d.

How do you get help or support for Internet use? 25–39

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

18. Do you work at home? Do you take a computer home, or do you use your home computer? Can you “log on” to work from home? 19. How do you organize your files? Do you make and name folders for your email? For your other files? Please describe the organization (by subject, date, type of data, etc.) 20. How do you name your files? Are there any policies for naming files? 21. Do you save files on a network? Where? Do you have an assigned space or account? 22. Do you save files on your own computer? Where? 23. Do you save files in some common place with other people from your department? 24. Do you use one or more e-mail accounts? 25. What are your user or ID names? What is your e-mail address? 26. Do you have e-mail archives? What are they called? How or where are they stored? How do you get to them? 27. Do you have an assistant or secretary who has access to your computer accounts? What are they permitted to do? 28. Do you delegate computer work to a secretary or assistant, for example, ask someone else to make or send files for you, or save, store or back up files for you? 29. Do you or others have password protection or other security for your computer? For your network privileges? For your e-mail? 30. Do you back up the data on your computer? a.

If so, when did you last do it, and how?

b.

Does anyone else see to your backups? How is it done?

c.

Is there a backup schedule?

31. Do you know if someone in your company backs up your computer files or e-mail? Do you know where or how? Do you know the schedule? Do you know where the backups are kept? Do you know if there is an offsite service or storage facility? 25–40

ELECTRONIC DISCOVERY

32. Have you looked through all of your computers, disks, tapes, CDs, DVDs, and network drives for every kind of file relating to this case? Did you print the files, or did you make electronic copies? How about for company databases and other resources on the network, did you look at any of those? 33. Did you receive/what instructions did you receive in connection with preserving or locating or retrieving computer files for this case? 34. Have you seen the document request for this case? 35. How did you look for files? a.

Did you go by what you remember?

b.

Did you look at certain folders for certain kinds of files or file names?

c.

Did you do any computerized “Find” commands for filenames or text?

d.

Did you search your backups? Your archives? Your wastebasket or recycle bin?

36. How did you look for e-mail? a.

Did you look at Inbox? Sent Items? Other folders?

b.

Did you consider all the file attachments?

c.

Have you reviewed any backups from tapes?

37. Have any files or other information that may be relevant to this case been deleted from your computer? From any resource on the network? 38. Have you taken any special steps to preserve data? 39. Do you have any limits on the time in which you can keep e-mail? Files? 40. Do you have any size limits on your e-mail storage? On your network storage? 41. Are your e-mail messages deleted after a certain time? Can you do anything to preserve messages from this deletion? How long before an item is deleted, and what steps do you have to take? What are the policies for preserving or letting items be deleted? 42. Have you done anything to prevent automatic deletion of items relevant to this case? 25–41

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

43. What can you tell me about your company’s record retention policy? Do you have a manual? Have you received any training? Has anyone ever asked, or checked, to see if you are using it?

25–42

ELECTRONIC DISCOVERY

EXHIBIT 25D—Sample Questionnaire for Interviewing Client Technology Personnel SAMPLE QUESTIONNAIRE FOR ATTORNEYS INTERVIEWING CLIENT TECHNOLOGY PERSONNEL Charles R. Kellner Daticon, Inc. Norwich, CT This questionnaire may be used to develop some very basic information about a client organization’s e-mail, file, and backup tape resources. It is quite generic and will not be comprehensive enough for many industries and environments where the relevant data is lodged in rather specialized systems or databases. The attorney using this form should do so as an educational aid, rather than submitting it to client IT personnel to complete. However, with some briefing, the client IT personnel can use this form to develop a systematic way to explain systems and data stores to the legal team. Likewise, it may be useful in developing questions for opposing parties’ IT personnel. The questionnaire is designed to develop a basic description of the • numbers, size, distribution, and software of e-mail accounts within the company; • the content of files and e-mail attachments; • the size, frequency, and methods of e-mail backup; • the size, frequency, and methods of file server backup; and • the collections of e-mail backup tapes or other offline archives. If the company currently deploys multiple e-mail systems, or it has deployed multiple e-mail systems over the past [__] years, please copy this questionnaire and develop answers for each, starting with the largest and most current systems. Please provide dates to the month and year, if possible, for the implementation of each of the systems you describe. 1.

Numbers, size, distribution, and software of e-mail accounts within the company 1.1. What are the client and post office softwares used in this system? (E.g., Microsoft Outlook with Exchange Server; Lotus Notes; Outlook 25–43

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Express clients with Eudora, etc.) Please describe the most common configurations. 1.2. How long has/had this system been implemented? If possible, please provide the month and year implemented, and if applicable, the month and year taken offline, migrated or converted. 1.3. Is the e-mail stored primarily in a server or e-mail database, or on a user’s desktop or laptop, or both? Please describe the most common configurations. 1.4. How many users have accounts in this system? How many historically? 1.5. How many office locations does the system support, and what are those locations? 1.6. If more than one, please explain whether each of the locations has a separate e-mail database and/server, or whether e-mail service and administration are centralized. 1.7. If more than one, please explain how you map or track individual accounts with particular servers or databases. 1.8. Please provide your best estimate as to the aggregate size of the e-mail database, and/or the average size of the active e-mail accounts, and/or the average number of messages and attachments currently online per user. 1.9. Are there limitations on the size(s) of e-mail accounts? How is the limitation managed? Do account holders have options for storing email on desktops, network folders or elsewhere? Please describe the most common scenarios. How long have these policies been in effect? 1.10. Are there any automatic deletion or document retention features or policies in effect? For example, do e-mail users store important emails in a separate document management system? Do they have emails of any kind automatically deleted after a certain number of days or months? How long have these policies been in effect? 1.11. If this system replaces an earlier system, was e-mail converted or migrated into this system? Please describe briefly. 1.12. Who are the best sources of information for follow-up to these questions (name, telephone, e-mail, office location)?

25–44

ELECTRONIC DISCOVERY

2.

Files and attachments 2.1. What kinds of application files are commonly seen as e-mail attachments? 2.2. Apart from the above, what kinds of files are typically found on users’ hard drives, personal network folders, departmental shares or other resources? 2.3. Is the company using any proprietary software or creating any proprietary file types? 2.4. Is the company using or creating a substantial number of files with graphics formats or components, or with CAD-CAE-CAM software? Are there presentations or documentation with substantial graphics or photos within?

3.

The size, frequency, and method of e-mail backup. For each location (or if the same for all locations): 3.1. Please describe your e-mail backup procedures (e.g., frequency of incremental and full backups, frequency of tape rotation or overwriting, frequency of full backups preserved). 3.2. Using what kind of tape or other backup media are the backups made? What is the storage capacity of the media? Please describe all media used with this system. 3.3. Using what server operating system and backup software are the backups created? Please give particulars with respect to software versions, compression, and use of backup “agents,” if applicable. 3.4. Is e-mail for a single backup date stored on a single tape, or does the backup “span” more than one tape? Please describe. 3.5. Is e-mail backed up separately from other data or system files? Please describe. 3.6. What is your estimate of the size of the current backups, in uncompressed gigabytes? If the e-mail backup is not segregated, please, if you can, estimate the size of the whole backup and the size of the e-mail component. 3.7. Does the backup software create a catalog of the data stored on the backup? If so, is that catalog stored only on each tape, or is it stored in 25–45

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

an external file or database, or both? If stored in an external file or database, for what periods (month and year) do you have this catalog collection? 3.8. Are there laptop or other mobile users who have special circumstances with respect to backup, archive or storage? Please explain. 3.9. If different from above, who are the best sources of information for follow-ups to these questions (name, telephone, e-mail, office location)? 4.

The size, frequency, and method of backups of servers other than e-mail. For each location (or if the same for all locations): 4.1. Please describe your file server backup procedures (e.g., frequency of incremental and full backups, frequency of tape rotation or overwriting, frequency of full backups preserved). 4.2. Using what kind of tape or other backup media are the backups made? What is the storage capacity of the media? Please describe all media used with this system. 4.3. Using what server operating system and backup software are the backups created? Please give particulars with respect to software versions, compression, and use of backup “agents,” if applicable. 4.4. Is the server backup for a single date stored on a single tape, or does the backup “span” more than one tape? Please describe. 4.5. Are files backed up separately from other data or system files? Please describe. 4.6. What is your estimate of the size of the current backups, in uncompressed gigabytes? If the file backup is not segregated, please, if you can, estimate the size of the whole backup and the size of the data file component. 4.7. Does the backup software create a catalog of the data stored on the backup? If so, is that catalog stored only on each tape, or is it stored in an external file or database, or both? If stored in an external file or database, for what periods (month and year) do you have this catalog collection? 4.8. Are there laptop or other mobile users who have special circumstances with respect to backup, archive or storage? Please explain.

25–46

ELECTRONIC DISCOVERY

4.9. If different from above, who are the best sources of information for follow-ups to these questions (name, telephone, e-mail, office location)? 5.

The collection of e-mail and other backup tapes or other offline archives. For each location: 5.1. Please describe the types and numbers of tapes on which files and email have been backed up and stored. (Numbers of tapes, routinely overwritten or preserved, interval between tapes, spans in days, weeks, months, or years.) Please provide this information for all tapes, backup discs, external hard drives, or online storage use, which may contain files and e-mail for the period [date to date], for all locations, and whether for the current file server or e-mail system or a legacy file server or e-mail system. 5.2. If you can easily or reasonably do it, please provide an inventory or spreadsheet with as much of the following information as possible: 5.2.1.

Date of backup

5.2.2.

Date range spanned by backup

5.2.3.

Incremental or full?

5.2.4.

Server or database backed up, and office location

5.2.5.

Type of tape and capacity

5.2.6.

E-mail only or unsegregated backup

5.2.7.

Number of tapes in set, if applicable

5.2.8.

Size of e-mail backup (gB)

5.2.9.

Office locations backed up on this tape/set

5.2.10. Estimated e-mail users backed up on this tape/set, backup discs, external hard drives, or online storage use 5.2.11. Type of e-mail system/database backed up on this tape/set, backup discs, external hard drives, or online storage use 5.2.12. Backup server operating system 5.2.13. Backup software, version, agent 25–47

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

5.2.14. External catalog? 5.2.15. Tape catalog? 5.3. Are all of these tapes, backup discs, or external hard drives kept at company location(s), or do you use an offsite storage vendor? Please explain. 5.4. If more than one location, please explain how you map or track individual accounts with particular servers or databases and then to particular tapes or tape sets. 5.5. If different from above, who are the best sources of information for follow-ups to these questions (name, telephone, e-mail, office location)?

25–48

ELECTRONIC DISCOVERY

EXHIBIT 25E—Sample Notices (Formal and Basic) [Two examples follow, the first more formal, the second a basic notice] Dear ___________: As critical evidence in this matter exists in the form of electronic data contained in the computer systems of Company, this is a notice and demand that such evidence identified below in paragraphs 2 through 6 must be immediately preserved and retained by Company until further written notice from the undersigned. This request is essential, as a paper printout of text contained in a computer file does not completely reflect all information contained within the electronic file. Please be aware that the continued operation of the computer systems identified herein will likely result in the destruction of relevant evidence due to the fact that electronic evidence can be easily altered, deleted or otherwise modified. The failure to preserve and retain the electronic data outlined in this notice constitutes spoliation of evidence and will subject Company to legal claims for damages and/or evidentiary and monetary sanctions. 1. For purposes of this notice, “Electronic Data” shall include, but not be limited to, all text files (including word processing documents), spreadsheets, e-mail files and information concerning e-mail (including logs of e-mail history and usage), header information files, databases, calendar and scheduling information, financial and accounting information, computer system activity logs, and all file fragments and backup files and backup tapes containing electronic data. 2. Please preserve and retain all Electronic Data generated or received by __________. (specific individuals) 3. Please preserve and retain all Electronic Data containing any information about __________. (specific subjects and date ranges) 4. Company must refrain from operating (or removing or altering fixed or external drives and media attached thereto) standalone personal computers, network workstations, notebook and/or laptop computers operated by ___________. In addition, Company should safeguard and preserve the relevant data of any employee departing the company’s employment for any reason. 5. Company must retain and preserve all backup tapes or other storage media, whether on-line or off-line, and refrain from overwriting or deleting information contained thereon, which may contain Electronic Data identified in paragraphs 2 through 4.

25–49

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

6. In order to alleviate any burden upon Company, we are prepared to immediately enlist the services of a computer forensic expert to properly and noninvasively create back-up images of all drives and media in the custody and control of Company that may contain Electronic Data relevant to this matter. We can accomplish the imaging and backups through stipulation using agreed-upon procedures and protections. [Example 2 is a basic notice and is less Draconian] Dear ___________: Please be advised that [Plaintiffs/Defendants/Third Party] believe electronically stored information to be an important and irreplaceable source of discovery and/or evidence in the above-referenced matter. The discovery requests served in this matter seek information from [Plaintiffs’/Defendants’] computer systems, removable electronic media and other locations. This includes, but is not limited to, e-mail and other electronic communication, word processing documents, spreadsheets, databases, calendars, telephone logs, contact manager information, Internet usage files, [other specific data that is important to the case] and network access information. The laws and rules prohibiting destruction of evidence apply to electronically stored information in the same manner that they apply to other evidence. Due to its format, electronic information is easily deleted, modified or corrupted. Accordingly, [Plaintiffs/Defendants/Third Party] must take every reasonable step to preserve this information until the final resolution of this matter. This includes, but is not limited to, an obligation to discontinue all data destruction and backup tape recycling policies. If this correspondence is in any respect unclear, please do not hesitate to call me. Sincerely,

25–50

ELECTRONIC DISCOVERY

EXHIBIT 25F—Sample Preservation Letter Paul M. Robertson, Esq. Direct Dial: 617-951-8862 [DATE] VIA TELECOPIER AND U.S. MAIL Robert M. Cedar, Esq. Cedar & Post, LLP 122 Law Road Boston, MA 02108 Re:

Company A v. Company B, et al., Suffolk Superior Court No. 02-8888A

Dear Robert: As you know, the laws and rules prohibiting destruction of evidence apply to electronic data with the same force as they apply to other kinds of evidence. The purpose of this letter is to ensure that you and your client, Company A, are mindful of its obligations to take proactive steps to ensure that relevant electronic evidence is preserved pending resolution of the above-referenced dispute. I specifically request that you advise your client to address the following preservation obligations: 1.

Identify those individuals at Company A, including but not limited to 1 [___] , who potentially possess or control relevant recorded information, whether it be in electronic or hard-copy form, and take steps to ensure that all recorded information relevant to the Dispute is identified and preserved pending the resolution of this matter;

2.

Identify and preserve all electronic mail sent or received by [___] relating to the issues or events identified in Company A’s Complaint or the Counterclaims asserted against it (collectively, these issues and events are referred to

2

1

If possible, specifically list the individuals working at Company A who might have relevant evidence. If you can specify by name, do so. If not, describe by responsibility or job type. 2

If meta-data is relevant to your particular dispute, add a reference to the obligation to preserve “information about electronic mail, including message contents, header information, and logs of electronic mail systems usage.”

25–51

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

3

herein as “the Dispute”) (This expressly includes all e-mail exchanged within Company A or with any third parties relating in any manner to the Dispute.); 3.

Identify and preserve all media used for off-line storage, including magnetic tapes, cartridges, hard drives, online storage, and other media, that contain any electronic information meeting the criteria listed above (Please also ensure that there is no activity, such as rotation, destruction, or overwriting, that would cause the loss of any electronic data.); and

4.

Identify and preserve all word processing files and file fragments, and all activity logs for the computer systems that have processed or stored elec4 tronic data, that contain information about the Dispute.

Please note that the courts have sanctioned parties that have failed to take reasonable steps to preserve recorded information after being put on notice of its relevance to a pending dispute. See, e.g., Zubulake v. UBS Warburg, 2003 U.S. Dist. Lexis 18771 (S.D.N.Y. Oct. 22, 2003) (spoliation found where e-mails of key players were deleted ten months prior to litigation and four months prior to filing of formal complaint, because immediate supervisor and other key employees reasonably anticipated litigation, at which time defendant should have suspended its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents). In light of these obligations, we strongly urge Company A to create a written record to ensure that all individuals who possess or control electronic documents, including e-mail, are notified and advised of their legal obligation not to destroy evidence. Please confirm in writing that these matters have been addressed by your client, Company A. I will take your silence on the issue to be an indication that Company A understands and is in compliance with these obligations. Please also let me know if you have any questions or comments about this letter or if there is any part of it that you do not understand. Very truly yours, Paul M. Robertson

3

Describe with as much detail as possible the subject matters that you believe relevant to the dispute. The more specific you can be, the more difficult it will be for opposing counsel and party to say that they were unaware that you wanted that. Think of it in terms of an early document request, spend ten minutes listing the categories of documents that you want, and then set them forth in the letter. 4

Include this category “4” only if relevant to your dispute.

25–52

ELECTRONIC DISCOVERY

EXHIBIT 25G—Model Order Regarding Preservation Model Order Regarding Preservation 1 [The primary purpose of this model order is to have the parties meet and confer to develop their own preservation plan. If the court determines that such a conference is unnecessary or undesirable, Section 3 may be modified to serve as stand-alone preservation order.] 1.

Order to Meet and Confer

To further the just, speedy, and economical management of discovery, the parties are ORDERED to meet and confer as soon as practicable, no later than 30 days after the date of this Order, to develop a plan for the preservation of documents, data, and tangible things reasonably anticipated to be subject to discovery in this action. The parties may conduct this conference as part of the Rule 26(f) conference if it is scheduled to take place within 30 days of the date of this Order. The resulting preservation plan may be submitted to this Court as an Order under Rule 16(e). 2.

Subjects for Consideration

The parties should attempt to reach agreement on all issues regarding the preservation of documents, data, and tangible things. These issues include, but are not necessarily limited to: a.

the extent of the preservation obligation, identifying the types of material to be preserved, the subject matter, time frame, the authors and addressees, and key words to be used in identifying responsive materials;

b.

the form and method of providing notice of the duty to preserve to persons identified as custodians of documents, data, and tangible things;

c.

the identification of persons responsible for carrying out preservation obligations on behalf of each party;

d.

mechanisms for monitoring, certifying, or auditing custodian compliance with preservation obligations;

1

Adapted by Paul Robertson from a prototype (obtained courtesy of Kenneth J. Withers, Esq., of the Federal Judicial Center) of Form 40.25 of the Manual for Complex Litigation (Federal Judicial Center 4th ed. 2004).

25–53

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

3.

e.

whether preservation will require suspending or modifying any routine business processes or procedures, with special attention to document management programs and the recycling of computer data storage media;

f.

the methods to preserve any volatile but potentially discoverable material, such as voicemail, active data in databases, or electronic messages;

g.

the anticipated costs of preservation and ways to reduce or share these costs; and

h.

a mechanism to review and modify the preservation obligation as discovery proceeds, eliminating or adding particular categories of documents, data, and tangible things.

The Duty to Preserve a.

Until the parties reach agreement on a preservation plan, all parties and their counsel are reminded of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data, and tangible things in the possession, custody and control of the parties in this action, and any employees, agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action. Counsel are under an obligation to exercise reasonable efforts to identify and notify such non-parties, including employees of corporate or institutional parties.

b.

The phrase “documents, data, and tangible things” is to be interpreted broadly to include writings; records; files; correspondence; reports; memoranda; calendars; diaries; minutes; electronic messages; voicemail; e-mail; telephone message records or logs; computer and network activity logs; hard drives; backup data; removable computer storage media such as tapes, disks, and cards; printouts; document image files; web pages; databases; spreadsheets; software; books; ledgers; journals; orders; invoices; bills; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; films; charts; digital or chemical process photographs; video, phonographic, tape, or digital recordings, or transcripts thereof; drafts; jottings; and notes. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition.

c.

The term “preservation” is to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data, and tangible things reasonably anticipated to be subject to discovery under Rules of

25–54

ELECTRONIC DISCOVERY

Procedure 26, 45, and 56(e) in this action. Preservation includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible. d.

If the business practices of any party involve the routine destruction, recycling, relocation, or mutation of documents, that party must, to the extent practicable and for the pendency of this initial order, either: i.

halt such business processes,

ii. sequester or remove the material from the business process, or iii. arrange for the preservation of complete and accurate duplicates or copies of such material, suitable for later discovery if requested. e.

4.

Before the conference to develop a preservation plan, a party may apply to the court for further instructions regarding the duty to preserve specific categories of documents, data, or tangible things. A party may seek permission to resume routine business processes relating to the storage or destruction of specific categories of documents, data, or tangible things, upon a showing of undue cost, burden, or over-breadth.

Procedure for Resolving Disputes

If, after conferring to develop a preservation plan, counsel do not reach agreement on the subjects listed under Section 2 of this Order or on other material aspects of preservation, the parties are to submit to the court within three days of the conference a statement of the unresolved issues together with each party’s proposal for their resolution of the issues. The court will consider the statements with any outstanding applications under Section 3(e) above in framing an order regarding the preservation of documents, data, and tangible things. Entered this _____ day of _____, 20__.

____________________ Judge

25–55

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

25–56

CHAPTER 26

Discovery Relating to Experts Howard B. Klein § 26.1

Overview ............................................................................. 26–1

§ 26.2

Governing Rules ................................................................. 26–2

§ 26.3

Retaining and Working with Expert Witnesses............... 26–3

§ 26.4

Status of Daubert in Rhode Island State Practice............ 26–6

§ 26.5

Propounding and Responding to Expert Interrogatories.................................................................... 26–8

§ 26.6

To Depose or Not to Depose............................................. 26–10

§ 26.7

Preparing for Expert Depositions ................................... 26–10

§ 26.8

Conducting the Expert Deposition ................................. 26–13

§ 26.9

Defending the Expert Deposition.................................... 26–15

§ 26.10 Proper—and Improper—Deposition Behavior ............. 26–16 § 26.11 Use of Expert Depositions in Motions or at Trial .......... 26–17 § 26.12 Taking Your Expert’s Video Deposition for Use at Trial ............................................................................... 26–18 § 26.13 Special Considerations Regarding Fact Witnesses Who May Also Testify as Experts ................................... 26–20 § 26.14 Discovery Concerning Nontestifying Experts ................ 26–22 § 26.15 Comparison with Federal Practice ................................. 26–24 EXHIBIT 26A—Sample Expert Interrogatory ........................... 26–29 EXHIBIT 26B—Sample Scheduling Order ................................. 26–31 26–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

26–ii

CHAPTER 26

Discovery Relating to Experts* Howard B. Klein

Scope Note This chapter introduces the reader to the practice of obtaining discovery concerning the opponent’s experts, and offers practical guidance on retaining and working with experts. Issues concerning Daubert are addressed, and the chapter contains sections devoted to propounding interrogatories to experts, deposing experts, and using their testimony at trial. The chapter compares Rhode Island practice with the federal rules.

§ 26.1

OVERVIEW

The use of experts in modern litigation is ubiquitous. In most major tort cases, expert testimony is necessary on the issues of liability, damages, or both. It is therefore essential for practitioners to have a thorough knowledge of the rules, procedures, and tactics relating to expert discovery. This chapter addresses those matters, legally and practically. Obtaining adequate discovery about your opponent’s experts is critical to final case preparation and avoiding unwelcome surprises at trial. Conducting skillful expert discovery will assist you in challenging the admissibility of an opposing expert’s testimony or cross-examining the expert at trial. In addition, discovery concerning the opposing experts and their opinions—or the lack thereof— greatly assists in objectively assessing a case’s settlement value. In state court, the first opportunity to obtain expert discovery is normally when you receive answers to expert interrogatories, in which your adversary identifies his or her testifying experts, their opinions, and the bases for those opinions. This disclosure customarily occurs well into the case, after most, if not all, factual discovery has been completed. After receiving the written expert disclosure, you may then depose the opposing experts.

* The analyses and commentary contained in this chapter are the author’s and do not necessarily reflect the views of the Federal Deposit Insurance Corporation.

26–1

§ 26.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Expert depositions often occur in a compressed time frame, several months before trial. Therefore, by the time expert discovery begins, it is important to be fully conversant with the scientific or technical principles presented in the case and the underlying evidence relevant to those principles. Fortunately, you will have consulted extensively with your own experts and reviewed the relevant scientific or technical literature. This, along with a healthy dose of Internet research into opposing experts, will help you successfully square off against them at deposition or trial.

§ 26.2

GOVERNING RULES

Expert discovery in Rhode Island is governed primarily by Rule 26(b)(4) of the Superior Court Rules of Civil Procedure. The text of the Rule provides as follows: (4) Trial Preparation: Experts. (A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party. Unless otherwise ordered by the court, the party seeking to depose the expert shall pay the expert the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition. In the absence of agreement between the parties as to the timing of disclosures required under this subdivision, any party may apply to the court for an order establishing a schedule of such interrogatories, responses, and depositions. Obligation to respond to interrogatories shall be stayed until the ruling on the application. (B) A party may discover facts known and opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected

26–2

DISCOVERY RELATING TO EXPERTS

§ 26.2

to be called as a witness at trial only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. Super. R. Civ. P. 26(b)(4). This Rule, as supplemented by case law, sets forth the basic standards, procedures, and limitations governing expert discovery. In practice, such discovery is almost always limited to obtaining information concerning experts designated to testify at trial. Only in very unusual circumstances may a party conduct discovery into the work of an opposing expert who is not anticipated to testify at trial. Those circumstances are discussed in § 26.14, below.

§ 26.3

RETAINING AND WORKING WITH EXPERT WITNESSES

Prior to filing suit, you should determine whether experts are needed and, if so, in which fields. Medical malpractice, legal malpractice, accounting malpractice, and other professional liability cases almost always require expert witnesses. Experts are also necessary in nearly all product liability actions. In commercial cases, experts are commonly needed to testify as to damages or relevant economic principles. Obtaining qualified expert witnesses is not always easy. In medical malpractice cases, it can be particularly challenging for the plaintiff to locate expert witnesses. As a rule, the plaintiff in a malpractice case must go outside the local or regional area to obtain a qualified expert willing to undertake the matter. On the other hand, engineering, technical, and economic experts are fairly easy to locate and many hold professorships at area universities. In those instances, significant 26–3

§ 26.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

background information about the potential expert can be found on the university’s Web site. There are an abundance of fee-based companies that will refer you to an expert witness. These companies develop contacts with experts and can be helpful in locating certain specialists. Make sure you understand and are comfortable with the company’s financial terms before you avail yourself of its services. Also be aware that an expert can be cross-examined regarding his or her relationship with these companies. First and foremost, your expert must possess the requisite qualifications in the scientific or technical discipline at issue. It is therefore imperative to critically assess the expert’s qualifications before retaining him or her. Although the Rhode Island Supreme Court has not set unduly strict standards to qualify an expert, see Debar v. Women & Infants Hosp., 762 A.2d 1182, 1185–89 (R.I. 2000) (and cases cited), there is no need to tempt fate by retaining an expert whose qualifications are open to question. Moreover, in cases which may turn on expert testimony, a highly qualified expert can be an immense asset to settlement or prevailing at trial. Try to retain the most qualified and articulate expert you can find. It is important to understand the extent of an expert’s legal consulting experience—including experience testifying—before the expert is hired. A highly credentialed expert who rarely becomes involved in litigation can be seen as objective and enjoy good credibility with judge and jury. Nonetheless, the same expert, as one who rarely testifies, may be uncomfortable with aggressive questioning and thus more easily cross-examined. At the other end of the spectrum, a very experienced and courtroom-savvy expert can be accused, sometimes accurately, of being a hired gun. There is no easy solution for this conundrum. A decision should be made, case by case, as to how each expert fits into the case and the overall impression that all the experts, in the aggregate, will make upon the jury. Regardless of the method used to locate the expert, it is important to vet the expert as much as possible before retaining or designating him or her as a testifying expert. The Internet is a very powerful tool to investigate expert witnesses and you should assume that your opponent will find everything on the Internet concerning your expert. The best time for you to find that information is before you hire the expert. Ethics Commentary It is improper for a party to retain or have ex parte communications with an expert who has been properly retained by opposing counsel in the same case. Similarly, in personal injury cases, defense counsel

26–4

DISCOVERY RELATING TO EXPERTS

§ 26.3

may not have ex-parte communications with the plaintiff’s treating physician, much less retain the physician as an expert witness. R.I. Gen. Laws § 5-37.3-4(b)(8)(ii) (superseding Lewis v. Roderick, 617 A.2d 119 (R.I. 1992)). It is also unethical to retain multiple experts in a specialized field for the purpose of preventing opposing counsel from consulting or retaining them.

Once the expert is retained, you must provide him or her with the factual information necessary to do his or her job. All underlying data, tangible things, and pertinent discovery materials should be provided to the expert for review and consideration. Needless to say, whenever possible, a plaintiff should retain all necessary expert witnesses and obtain valid supporting opinions prior to filing suit. In addition to expressing opinions necessary to the case, experts can suggest fruitful areas of inquiry from witnesses and identify important documents that your opponent or third parties may possess. Care must be taken with respect to sharing work product with an expert. The Rhode Island Supreme Court has held that an attorney’s factual work product that is shared with an expert is not privileged and is discoverable by opposing counsel. Crowe Countryside v. Novare Eng’rs, 891 A.2d 838, 846-48 (R.I. 2006). If you provide your expert with such work product, including attorneygenerated factual summaries, those documents will be discoverable. Although factual work product is discoverable when shared with an expert, Rule 26(b)(3) still protects the mental impressions, legal theories, and strategies of an attorney while working with an expert. Crowe Countryside v. Novare Eng’rs, 891 A.2d at 846–48. This core attorney work product thus remains privileged, even if imparted to the expert. Crowe Countryside v. Novare Eng’rs, 891 A.2d at 846–48. The protection of core work product is a rule of practicality, if not necessity. It would be very difficult to properly orient and work with an expert without informing him or her of your theories, mental impression, and litigation strategies. Crowe Countryside v. Novare Eng’rs, 891 A.2d at 846–48. Nonetheless, prudence dictates that you not send letters or e-mails to experts that contain your core work product. Inadvertent disclosures can and do happen. Expert reports are not required to be prepared or provided under Rhode Island state practice and it makes little sense to request one from an expert. Because reports are required under federal practice, however, an expert may incorrectly assume that you need one. Hence, it is advisable to notify your expert at the outset that a report is unnecessary. Some experts, particularly economists, use standardized computer models to calculate damages and automatically generate reports as part of their methodology. In those instances, some kind of a report will be unavoidable and likely produced at deposition. The discoverability of draft reports has not been addressed by the Rhode Island Supreme Court; however, 26–5

§ 26.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

this issue has engendered considerable controversy in federal practice. See § 26.15, below. Special care must be taken regarding destructive testing performed by experts. Destructive testing of real evidence should not be undertaken without reasonable prior notice to the opposing party. This is particularly important in product liability cases. If an expert conducts destructive testing without proper notice to the other side, the party engaging the expert will, at the very least, be saddled with a spoliation instruction, permitting the jury to draw an adverse inference from the expert’s destruction of relevant evidence. Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183 (R.I. 1999). And the potential remains for complete exclusion of such evidence and dismissal of the case. Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183 (R.I. 1999).

§ 26.4

STATUS OF DAUBERT IN RHODE ISLAND STATE PRACTICE

By now, most litigators have felt the seismic shift in the standards for admission of expert testimony engendered by the U.S. Supreme Court’s decision in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Although Daubert purported to liberalize the standards for admission of expert testimony by discarding the inflexible general acceptance test, its effect was far from liberalizing. Daubert required federal district judges, on an appropriate motion, to act as gatekeepers and evaluate the scientific validity of an expert’s methodology. This is accomplished by assessing various criteria, including whether the methodology can be tested, whether it has been subjected to peer review, whether it has a known error rate, and whether it is generally accepted. After the district judge completes this scientific analysis, which may include a preliminary evidentiary hearing in which the expert is called to testify, the judge must make a ruling as to whether the expert’s methodology is scientifically sound. If the judge determines that the proposed expert’s methodology is not scientifically valid, then the testimony must be excluded. This determination of an expert’s reliability is reviewable only for an abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). The effect of Daubert in federal practice has been profound. When a district court excludes the plaintiff’s expert on an essential element, judgment is entered for the defendant. Countless actions have been terminated under Daubert in this manner. Furthermore, the scope of appellate review of these judgments is effectively limited to abuse of discretion. Although the Supreme Court has made clear that district courts are required to evaluate the expert’s methodology rather than the opinion itself, this distinction has not always been fully understood or appreciated. 26–6

DISCOVERY RELATING TO EXPERTS

§ 26.4

Daubert has thus become an extremely effective weapon for the defense bar. In federal practice, particularly for the plaintiff, one must start preparing for the Daubert hearing as soon as the expert is hired, if not earlier. The Rhode Island Supreme Court has not expressly adopted the Daubert standards. However, the court has drawn significant guidance from the decision, beginning with DiPetrillo v. Dow Chemical Co., 729 A.2d 677 (R.I. 1999). In DiPetrillo, the Rhode Island Supreme Court endorsed the use of a preliminary hearing into an expert’s methodology when novel scientific or highly technical issues are involved. In order to obtain a hearing, the moving party must file a motion, supported by affidavit or other proof, specifying the reason the proposed testimony is scientifically invalid. DiPetrillo v. Dow Chem. Co., 729 A.2d at 683–85. Where the expert’s testimony is based upon generally accepted scientific principles, however, a preliminary inquiry is unnecessary. DiPetrillo v. Dow Chem. Co., 729 A.2d at 683–85. In evaluating the reliability of expert testimony, trial justices “must take care not to interfere with the jury’s role as the trier of fact.” Owens v. Silvia, 838 A.2d 881, 899 (R.I. 2003). To protect the jury’s role, the Rhode Island Supreme Court has therefore applied a modified version of the Daubert inquiry. In federal practice, the district judge must determine, in his or her own view, whether the expert’s methodology is scientifically valid. Under Rhode Island practice, however, the trial justice must determine whether the evidence permits “a reasonable juror to conclude that [the expert’s] methods are grounded in valid science.” Owens v. Silvia, 838 A.2d at 899 (emphasis added). Thus, “trial justices are not required to become scientific experts” and are not required to make a final determination as to the scientific validity of the expert’s methodology. Owens v. Silvia, 838 A.2d at 892. This provides a more respectful allocation of the roles of judge and jury in the consideration of expert testimony. Novel scientific issues infrequently arise in Rhode Island state practice. Nonetheless, even if your expert’s work is not novel, it is crucial to understand and be prepared to address the scientific legitimacy of the expert’s work. The key is to understand the process by which your expert has reached his conclusions and the scientific justification for that process. Technical or scientific literature which supports the expert’s methodology should be obtained, reviewed, and discussed with the expert in all but the simplest cases. By understanding and documenting the validity of the expert’s methodology, you can assure yourself first, and the court later if necessary, that your expert’s testimony is based on reliable scientific principles.

26–7

§ 26.5

§ 26.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

PROPOUNDING AND RESPONDING TO EXPERT INTERROGATORIES

The first step in obtaining discovery about opposing testifying experts is to propound an appropriate expert interrogatory. The interrogatory should track the language of the rule and request the identity of the opposing experts, the subject matter of their testimony, a summary of their opinions, and the bases for their opinions. A sample interrogatory is attached as Exhibit 26A. The expert interrogatory should be served along with your other interrogatories early in the case. Do not expect to receive a substantive response anytime soon, however. Invariably, the parties will inform each other that they have not yet determined which experts will testify at trial and that the interrogatory will be supplemented in accordance with the Superior Court Rules of Civil Procedure. Under Rule 33(c), the parties may supplement their interrogatory answers thirty days prior to trial. Consequently, without an agreement or scheduling order, do not expect to receive an answer to your expert interrogatory until that time. In order to obtain meaningful expert discovery, it is necessary to obtain a scheduling order or to enter into an agreement with opposing counsel establishing more workable deadlines for expert disclosures. The right to seek a scheduling order is specifically provided in Rule 26(b)(4)(A). A scheduling order will generally require the plaintiff to serve his or her expert interrogatory answer first, with the defendants answering thirty days thereafter. The plaintiff should request the right, in the scheduling order, to designate rebuttal testimony or rebuttal experts within thirty days after the defendant’s designations. A sample scheduling order governing expert disclosures is provided as Exhibit 26B. Answers to expert interrogatories should fairly and completely disclose all the opinions the experts intend to give and the bases for those opinions. Experts or opinions not disclosed in answers to expert interrogatories will not ordinarily be received into evidence at trial. Blue Coast, Inc. v. Suarez Corp. Indus., 870 A.2d 997 (R.I. 2003). Conclusory disclosures which merely state the expert’s ultimate opinion are also unacceptable. Rule 26(b)(4)(A) requires a party to disclose, inter alia, the basis for each opinion the expert intends to render. If your opponent’s expert interrogatory answer does not provide a sufficient disclosure, a more responsive answer should be requested. If a proper response is not forthcoming, a motion to compel should be filed. The aggrieved party may also seek, in the alternative, to limit the expert’s testimony or exclude it entirely if the disclosure is grossly inadequate. A party should not be forced to pay for an expert deposition to ferret out information which Rule 26(b)(4)(A) requires to be disclosed in interrogatory answers. 26–8

DISCOVERY RELATING TO EXPERTS

§ 26.5

Some attorneys may request information in expert interrogatories beyond that specified in Rule 26(b)(4)(A). For example, information regarding the expert’s education, training, publications, or prior testimony may be sought. In Rhode Island, a party is not obliged to provide this information in answers to expert interrogatories. If answers to expert interrogatories fairly disclose the information specified by the Rule, the answering party has met his or her obligation. Occasionally, a party may disclose three or more experts to testify on the same point. The recipient of such a disclosure is thus placed in the position of not knowing which expert is going to testify and having to depose them all. Where the number of disclosed experts on a single point is unreasonably large under the circumstances, an aggrieved party should file a motion to limit the number of experts on the issue, so that the time and expense of deposing these multiple experts can be avoided. It is important to work closely with your expert to prepare the disclosure. If you have diligently sent your expert the pertinent discovery materials as they are generated, the process of finalizing the expert’s opinions and preparing a disclosure will be much easier. Most attorneys, after a detailed discussion with the expert, will prepare the first draft of the disclosure. The draft is then sent or orally read to the expert. When the language of the disclosure is finalized and approved by each expert, it is prepared as an answer to an interrogatory, signed by the client under oath, and served upon all counsel. A good disclosure is very useful as a roadmap for each expert’s deposition and trial testimony. Ethics Commentary It is unethical and potentially fraudulent to serve an answer to an expert interrogatory that discloses an expert whom the attorney has not retained or discloses an opinion which the expert does not hold.

After the client signs the answers to expert interrogatories, you should send the full disclosure to all your testifying experts in the case. This allows each expert to clearly see how his or her testimony fits into the case vis-à-vis the other experts. Also, it is helpful to know how your experts feel about each other’s opinions before they are asked at a deposition. Likewise, when you receive expert disclosures from opposing counsel, send them to your experts to review. They will usually provide insightful analysis into the proposed testimony of the opposing experts and how to expose any weaknesses at deposition or trial. For the plaintiff, a decision must be made quickly as to whether to file a rebuttal disclosure.

26–9

§ 26.6

§ 26.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

TO DEPOSE OR NOT TO DEPOSE

Many lawyers have strongly held preferences as to whether and to what extent to depose opposing experts. Some attorneys infrequently depose experts, believing that the deposition only serves to better prepare the expert for trial. Other attorneys depose experts, but only to limit the parameters of their testimony. Finally, many attorneys depose experts to directly challenge their testimony, lay the groundwork for a motion in limine or cross-examination at trial, and to obtain favorable concessions. Seriously discrediting an opposing expert at his or her deposition is extremely valuable. If this can be accomplished, you will have strong fodder for crossexamination at trial, your settlement position will be enhanced, and your opponent may decide to forego calling the expert at trial. While it is also possible to exclude an expert’s testimony entirely based upon a flaw exposed at a deposition, this is uncommon in state practice. Significant opportunity exists in deposing opposing experts; however, countervailing considerations—such as providing opposing experts with additional preparation time or a glimpse of your trial strategy—should always be seriously considered. Ultimately, whether to depose experts in a particular case depends on many different factors, including the monetary amount at stake, the importance of experts to the case, the complexity of the scientific or technical issues, the plausibility of your adversary’s written expert disclosures, the potential for settlement, and the extent of publicly available information about the expert and his opinions. In high-value or highly complex cases, the general practice is to depose the experts.

§ 26.7

PREPARING FOR EXPERT DEPOSITIONS

After written expert disclosures are served, the time for expert depositions commences. Scheduling expert depositions with an approaching trial date can be challenging. This challenge is increased with multiple parties and with experts scattered throughout the country. All counsel usually travel to the expert’s location for the deposition. Logistical problems can be resolved with the use of videoconferencing. Try to establish a written record of your diligence in seeking the availability of opposing experts and opposing counsel, in the event a dispute arises later. Rule 30(b)(5) permits the deposing party to serve a document request to an opposing party along with the notice of deposition. Rule 45(a) likewise permits documents to be subpoenaed from a nonparty deponent. Often, a notice of deposition will request (or an accompanying subpoena will command) that the expert 26–10

DISCOVERY RELATING TO EXPERTS

§ 26.7

bring his or her entire file, curriculum vitae, and occasionally other documents to the deposition. Most of these requests are not controversial and consist of documents that the expert should bring to his or her deposition without being asked. Controversy may arise, however, when an expert is requested or commanded to bring personal or financial documents, particularly tax records reflecting the fees earned by the expert through legal consulting. The Rhode Island Supreme Court has not yet addressed the propriety of this practice. The Superior Court, however, has ordered such information to be produced where a physician, acting as an independent medical examiner, is known to have performed a sizable amount of consulting for a particular insurer over substantial periods of time. See Rarick v. Tobin, No. PC 00-6411, Order of Justice Thompson (April 2004). The relevance of such evidence on the issue of bias can outweigh the expert’s financial privacy interests, in appropriate circumstances. For a recent and thoughtful review of the pertinent cases in this emerging area, see Campos v. MTD Products, Inc., No. 2-07-0029, 2009 WL 920337 (M.D. Tenn. Apr. 1, 2009). Rule 30(b)(2) permits a deposition to be taken by videotape, without prior judicial approval. However, the deposition notice must designate the method of recording. Failure to provide proper notice of your intention to take a videotaped deposition may result in opposing counsel demanding that the recording equipment be turned off. If necessary, your expert may attend the deposition of an opposing party or expert. Be aware, however, that Rule 30(c) requires you to notify all counsel of record, forty-eight hours prior to the deposition, that your expert will be attending. Failure to provide such notice could result in a dispute erupting at the deposition. The deposing party “shall pay the expert the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition,” unless the court orders otherwise. Super. R. Civ. P. 26(b)(4)(A) (emphases added). The plain language of the Rule thus does not require the deposing party to pay for the expert’s preparation time. That fee must be paid by the party defending the deposition. The foregoing payment requirements have been modified, however, where an expert is deposed after submitting a medical affidavit pursuant to R.I. Gen. Laws § 9-19-27. If the opposing party chooses to depose the affiant, the proponent of the affidavit must generally pay the expert’s fee for the first hour of deposition. Gerstein v. Scotti, 626 A.2d 236 (R.I. 1993). After the first hour, the deposing party is required to pay the affiant’s fee. These fees are then recoverable as costs by the prevailing party. Gerstein v. Scotti, 626 A.2d 236 (R.I. 1993). The Gerstein rule may itself be modified if the proponent of the affidavit is unable to pay 26–11

§ 26.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

for the first hour of the expert’s testimony. Sherrington v. Dupont, Nos. 55-505M.P., 95-533-M.P. Order (R.I. Supreme Court, Mar. 27, 1996). This modification of Gerstein also applies in worker’s compensation proceedings, if the injured employee is unable to pay for the first hour of testimony. See Workers’ Comp. Ct. R. Prac. 2.13(3). Prior to deposing an adverse expert, it is important to gather and digest as much information as possible about him or her. Fortunately, the Internet provides an abundant and efficient opportunity to do so. An expert’s licenses and recent publications can usually be found with little difficulty. The organized defense and plaintiff’s bar have proprietary databases containing transcripts of experts’ testimony and other materials. With the federal courts utilizing electronic filing, it may also be productive to research experts through the Pacer system. Experts themselves are increasingly establishing their own Web sites, with biographical and other promotional information. Most experts belong to professional societies, and a society’s Web site can provide valuable information about an expert. Symposia agendas can be frequently found on the Internet and also provide insight into an expert’s viewpoint. If the expert is a professor, sometimes his or her course description will be posted on the university’s Web site. It is difficult for an expert to convincingly dismiss a particular theory or methodology as unimportant or unreliable if he or she teaches it to his or her students. One never knows what will pop up on the Internet about an expert. When you know the case, know the applicable technical or scientific principles, and know the expert, you will know the best approach to the expert’s deposition. Then, simply prepare your examination outline and you are ready for battle. Preparing your own expert is also critically important. If you have worked diligently with your expert throughout the case, deposition preparation should not be difficult. If your expert is inexperienced at testifying, allow for extra time to explain the deposition process and proper deposition demeanor. It is crucial for the expert to be conversant with his or her expert disclosure and the underlying evidence supporting his or her opinion. In most cases, it is best to meet with your expert the day before the deposition. This gives the expert a chance to “sleep on” the points you discuss with him or her. Make sure your expert brings to the deposition all the documents or other materials he or she relied upon; however, you should segregate any core work product for which you intend to claim a privilege. To the extent the expert relied upon scientific literature in electronic format, it may be advisable to have the expert print the materials for reference at the deposition.

26–12

DISCOVERY RELATING TO EXPERTS

§ 26.7

Make sure you know everything on the Internet about your expert. Difficult or sensitive information on the Internet should be discussed. Remember, your expert may not even know all the information that is posted about him or her on the Internet.

§ 26.8

CONDUCTING THE EXPERT DEPOSITION

Although there are countless approaches to conducting expert depositions, the following areas are almost always covered: • the expert’s background and qualifications in the discipline at issue; • the extent of the expert’s legal consulting practice, whether the expert has a plaintiff or defense bias, and similar cases in which expert has testified. • the circumstances of the expert’s hiring, the expert’s billing rate, and the amount of time devoted to the case; • the information and materials provided to the expert, considered by the expert, and relied upon by the expert; • the process by which the expert reached his or her conclusion; • the scientific principles, if any, which validate the expert’s methodology; • whether there are, in the expert’s opinion, any authoritative or reliable scientific treatises, journals, or articles on the subject matter of the expert’s testimony; • verification that all of the opinions the expert intends to give are set forth in his or her expert disclosure (counsel should not affirmatively offer the expert an opportunity to add opinions that have not previously been disclosed); and • verification that the expert disclosure fully sets forth all the bases for the expert’s opinions. In addition to the basic areas noted above, it is helpful to have the opposing expert validate the principles, methodologies, or opinions of your experts. If the opposing expert is unwilling to do so, elicit the scientific, technical, or factual basis upon which this disagreement is founded. If the expert is relying on disputed

26–13

§ 26.8

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

facts, ask the expert whether his or her opinion would change under provable facts favorable to your client. If the expert is testifying on the standard of care, ask the plaintiff’s expert whether he or she has ever deviated from that standard of care. Experts who hold themselves out as infallible can appear arrogant. If you represent the plaintiff, ask the defense expert whether he or she would have acted exactly like the defendant, with the same injury or loss resulting to the plaintiff. Those experts can be made to look callous and uncaring. If possible, establish a foundation upon which to argue that the expert’s testimony should be disbelieved or excluded as unreliable. This is most frequently accomplished by establishing that either (1) the expert was not provided with (or did not consider) the necessary information or (2) the expert relied upon inaccurate facts or data. Even without the obvious defects of inadequate or incorrect data, it is possible to adduce sufficient evidence at an expert deposition to justify a DiPetrillo motion. If the expert is utilizing an unscientific methodology, it should be discernable from answers to expert interrogatories. In such cases, flesh out this invalid methodology at the expert’s deposition and have the expert acknowledge his or her reliance on it. Next, have the expert admit that his or her methodology lacks some or all of the Daubert indicia of reliability: empirical testing, peer review, known error rate, and general acceptance. If the particular analysis requires a specific protocol to be followed, establish that the expert failed to adhere to the protocol. Lastly, try to establish that the expert’s process is used primarily or exclusively for litigation, rather than for scientific endeavors. A strong record in this regard may assist in exposing an opposing expert as a “charlatan or purveyor of junk science.” Gallucci v. Humbyrd, 709 A.2d 1059, 1064 (R.I. 1998). Be realistic about what you can accomplish through expert depositions. Accept that you will not know more about the subject matter than the expert and focus on the essential points that are necessary to your case. A disingenuous expert will avoid addressing those points by extensive use of technical jargon, longwinded but nonresponsive answers, and similar avoidance tactics. In those circumstances, keep your questions simple to highlight the expert’s obfuscation for later use at trial. While the expert may be proud of his or her ability to avoid your questions at the deposition, juries do not look favorably upon obfuscation. If you are fortunate enough to possess strong impeachment evidence concerning an opposing expert, do not automatically confront the expert with that information at the deposition. It may be preferable to hold the information for trial. There is no rule requiring damaging information about an opposing expert to be disclosed prior to trial. 26–14

DISCOVERY RELATING TO EXPERTS

§ 26.9

§ 26.9

DEFENDING THE EXPERT DEPOSITION

Representing your own expert at his or her deposition usually requires little involvement. If core work product is being withheld, you may identify such documents on the record, without disclosing the privileged information. Make sure the expert’s file is in front of him or her so that he or she can double-check the underlying factual information before answering questions. Occasionally, counsel will demand that the expert answer a question about some portion of the underlying data from memory, without consulting the file. Although somewhat unfair, deposing counsel probably has the right to do this and you should refrain from directing the witness not to answer. Make sure the record is clear, however, that counsel is demanding that the witness answer the question without consulting the file. Most experts in these circumstances are intelligent and humble enough to appropriately qualify their answer, if necessary. If your expert is interrupted in the middle of an answer, insist that he or she be permitted to finish. That said, it is not appropriate or helpful for your expert to embark upon an extended discourse, far afield from the question posed. This demonstrates either a lack of focus or an effort to avoid the question. In those circumstances, it is acceptable for deposing counsel to redirect the expert to the pending question. Deposing counsel will often ask an expert whether he or she agrees with opinions of your other experts. If you have properly prepared, you will know the answer to these questions. To the extent that your expert agrees with the opinions of your other experts, there is no harm in permitting him or her to so state. If there is a disagreement among your experts, however, the expert may decline to answer on the basis that he or she was not retained to testify on that point. Experts are not required to provide opinions other than those set forth in the expert disclosure. Cf. Sousa v. Chaset, 519 A.2d 1132, 1136 (R.I. 1987) (experts must be appropriately retained to render opinions and may not be subpoenaed against their will to provide expert testimony). Your expert may be questioned about the extent of his or her legal consulting and the amount of money he or she has earned through this endeavor. The general practice is to permit the expert to testify to the percentage of his or her professional earnings which derive from legal consulting, the breakdown of earnings as between plaintiffs and defendants, and the number of cases the expert has reviewed for the particular attorney or insurer. The expert can also be questioned as to the time devoted and amount billed in the pending case. Questions as to the expert’s gross or net income, however, are usually objected to as privileged or an invasion of privacy. Nonetheless, as noted above, for good cause shown it may

26–15

§ 26.9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

be possible to obtain such data from an expert who is closely identified with a particular litigant or insurer. Unless your expert makes a serious error or overlooks an important point, there should be no need to ask any questions at your expert’s discovery deposition. However, make sure to reserve your expert’s right to read and sign the deposition. Under Rule 30(e), this right must be exercised prior to completion of the deposition.

§ 26.10

PROPER—AND IMPROPER—DEPOSITION BEHAVIOR

Little should have to be said about proper deposition conduct. In Kelvey v. Coughlin, 625 A.2d 775 (R.I. 1993), the Rhode Island Supreme Court established the following mandatory standards for deposition conduct: 1. Counsel for the deponent shall refrain from gratuitous comments and directing the deponent in regard to times, dates, documents, testimony, and the like. 2. Counsel shall refrain from cuing the deponent by objecting in any manner other than stating an objection for the record followed by a word or two describing the legal basis for the objection. 3. Counsel shall refrain from directing the deponent not to answer any questions submitted unless the question calls for privileged information. 4. Counsel shall refrain from dialogue on the record during the course of the deposition. 5. If counsel for any party or person given notice of the deposition believes that these conditions are not being adhered to, that counsel may call for suspension of the deposition and then immediately apply to the court in which the case is pending, or the court in which the case will be brought, for an immediate ruling and remedy. Where appropriate, sanctions should be considered. Kelvey v. Coughlin, 625 A.2d at 777.

26–16

DISCOVERY RELATING TO EXPERTS

§ 26.10

The Kelvey standards were later incorporated into the Superior Court Rules of Civil Procedure. See Super. R. Civ. P. 30(d)(1) (“Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion [for protective order].”). If the Kelvey standards are not adhered to at a deposition, the offending attorney should be warned. If the behavior continues, it may be necessary to suspend the deposition and seek an order of the court. Do not be intimidated by those who are unwilling or unable to conform their conduct to the rules.

§ 26.11

USE OF EXPERT DEPOSITIONS IN MOTIONS OR AT TRIAL

After the experts have been deposed, you must decide how, if at all, to use their depositions. If the opposing expert’s testimony is demonstrably inadmissible, a motion in limine to exclude or limit the expert’s trial testimony is appropriate. Almost all such motions, if meritorious, can adequately be supported by the deposition of the opposing expert, affidavits from your experts, and any applicable scientific or technical literature. If a DiPetrillo hearing is genuinely needed, the moving party must present evidence calling into question the scientific reliability of the opposing expert’s methodology. DiPetrillo v. Dow Chem. Co., 729 A.2d 677, 683–85 (R.I. 1999). An unsupported motion to exclude the expert will not justify a preliminary hearing. DiPetrillo v. Dow Chem. Co., 729 A.2d at 683– 85. Motions in limine to exclude experts are generally filed with the trial justice and not placed on the regular motion calendar. Rhode Island state courts are not eager to convene pretrial evidentiary hearings to investigate the scientific validity of a proposed expert’s methodology. State court proceedings rarely involve novel scientific theories that justify such a hearing. Moreover, individual cases are not assigned to a specific trial judge until the action is reached for trial, and trial judges do not anticipate extended pretrial hearings when the parties are summoned for trial. Thus, in those rare cases where a DiPetrillo hearing may be needed, it would be wise to request a special assignment to a single justice well before trial. In any event, the trial judge will appreciate being alerted as early as possible to any scientific or technical issues that are expected to arise in connection with the admissibility of expert testimony.

26–17

§ 26.11

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Ethics Commentary It is unethical to seek or conduct a preliminary evidentiary hearing for the purpose of increasing the cost of the litigation or to annoy an opposing expert or counsel.

Do not assume that it is always best to file a pretrial motion to exclude an expert whose testimony is unsound. Frequently, it is better to save your criticisms for trial, and confront the expert directly with the error of his or her ways. Even at trial, however, exclusion of an essential opposing expert is not a surefire path to victory. In Rhode Island, unlike federal practice, if an essential expert’s testimony is excluded or stricken, trial justices must seriously consider a motion for continuance or involuntary nonsuit, and set forth their reasons for denying such a motion. Morra v. Harrop, 791 A.2d 472, 478 (R.I. 2002). If you have elicited crucial admissions from an opposing expert at his or her deposition, your adversary may choose not to call the expert. In those circumstances, it would be helpful to use the opposing expert’s deposition as affirmative evidence in your case. Unfortunately, however, you may not do this. In Owens v. Silvia, 838 A.2d 881, 900–02 (R.I. 2003), the Rhode Island Supreme Court held that the plaintiff could not present in his case-in-chief the deposition testimony of a withdrawn opposing expert. The court reasoned that to permit this practice would impermissibly require the expert to render opinion testimony against his or her will and allow a party to present testimony from an expert he did not retain. Owens v. Silvia, 838 A.2d at 900–02 (citing Sousa v. Chaset, 519 A.2d 1132, 1136 (R.I. 1987) and Ondis v. Pion, 497 A.2d 13, 18 (R.I. 1985)). Expert depositions are most commonly used for cross-examination at trial. When the opposing expert is called, you may impeach him or her with any inconsistent statements made at the deposition, in the manner provided by Rule 613 of the Rhode Island Rules of Evidence. You may also seek to preclude the expert from giving opinions that were not disclosed at the deposition or in answers to expert interrogatories. Thus, you must be prepared at trial to timely object to or move to strike any expert testimony which goes beyond the expert’s pretrial disclosures.

§ 26.12

TAKING YOUR EXPERT’S VIDEO DEPOSITION FOR USE AT TRIAL

There may be circumstances in which a medical provider or retained expert cannot appear for trial due to a scheduling conflict or other reason short of legal unavailability. Fortunately, Rhode Island practice permits you to take the video

26–18

DISCOVERY RELATING TO EXPERTS

§ 26.12

deposition of a medical provider or expert and use that deposition at trial— regardless of whether that witness is available: A deposition of a medical witness or any witness called as an expert, other than a party, which has been recorded by videotape by written stipulation of the parties or pursuant to an order of court may be used at trial for any purpose whether or not the witness is available to testify. Super. R. Civ. P. 32(a)(3)(E). This is a rule of admissibility which permits the video deposition of an expert or medical provider to be admitted at trial, even though the deposition itself constitutes hearsay evidence. The Rule implicitly acknowledges that medical providers and experts cannot always rearrange their commitments to meet the vicissitudes of a trial schedule. Thus, for these witnesses, Rule 32(a)(3)(E) dispenses with the requirement (under Rule 804(b)(1) of the Rhode Island Rules of Evidence) that the proponent of a deposition demonstrate that the witness is legally unavailable as a precondition to admissibility. Although it always preferable to present your witnesses live, there may be circumstances in which a video deposition of a medical provider or other expert is necessary. Most commonly, a plaintiff’s treating physician may not be able or inclined to forego seeing patients in order to testify at trial. These medical witnesses are very important, however, because they will not only testify to the facts of their treatment of the plaintiff, but also to their opinion as to the cause, extent, and prognosis of the plaintiff’s condition. Although it is possible to subpoena the provider for trial and examine him or her exclusively as a fact witness, it may well be preferable to work with the provider and schedule a video deposition to be conducted at the provider’s convenience. Retained experts are always expected to appear in person for trial. Nonetheless, there may be occasions in which a video deposition of an expert is necessary or appropriate. In relatively smaller cases, for example, an expert’s video deposition may save significant expense, particularly if substantial travel time is involved. Video depositions are notoriously boring for the jury, so try to keep them to a minimum. Procedurally, Rule 32(a)(3)(E) requires that you obtain a written stipulation or court order to record the deposition by videotape. This appears to be a vestige of the old Rule 30, which required a court order to take a videotaped deposition. Because videotaped depositions are now permitted as-of-right under Rule 30, the Rule 32(a)(3)(E) requirement of a stipulation or court order appears to be surplusage. 26–19

§ 26.12

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Customarily, the deposition notice will simply state that the video deposition is being taken for use at trial (or de bene esse), thus notifying opposing counsel of your intentions. Because the video deposition is intended to be used at trial, there is little room for imperfection in examining the witness. Both sides must prepare and conduct their examination as if in the presence of judge and jury. If the trial justice later sustains an objection—even to the form of a question—the witness’s answer will not be admitted. If you intend to introduce documents through the expert, make sure to lay the proper foundation for the evidence at that time. These considerations also apply to a discovery deposition of a treating physician who has moved out of state or is otherwise anticipated to be legally unavailable for trial. One must be particularly careful in examining an expert at a Rule 32(a)(3)(E) deposition. Judges have differing standards as to the necessary foundation for the admission of expert testimony and the form of critical questions. See, e.g., Gallucci v. Humbyrd, 709 A.2d 1059 (R.I. 1998). Once the video deposition is concluded, there is no opportunity to rephrase your questions or adduce a more thorough foundation, as one would be able to do with a live witness at trial. In exigent circumstances, you may need to seek a continuance and re-depose the witness. Gallucci v. Humbyrd, 709 A.2d 1059 (R.I. 1998). Although videotaped depositions can be helpful, particularly to present the testimony of busy treating physicians, they can also present a trap for even the most prepared attorney.

§ 26.13

SPECIAL CONSIDERATIONS REGARDING FACT WITNESSES WHO MAY ALSO TESTIFY AS EXPERTS

Occasionally, a fact witness may also be expected to give expert testimony. This most commonly occurs with the plaintiff’s treating physician. Individuals in the building trades who are parties to a case (either in contract or tort) may also qualify as experts and properly assume a dual role in the litigation. Additionally, an in-house scientist or engineer may find himself or herself serving as both a fact and an expert witness in product liability or intellectual property litigation. The application of the discovery rules to these dual-capacity witnesses thus merits special attention. Most importantly, to the extent that you intend to elicit expert testimony from a fact witness, including your client, you must disclose that testimony in answers to expert interrogatories. In Neri v. Nationwide Mutual Insurance Co., 719 A.2d 1150 (R.I. 1998), the plaintiff, a general contractor, sought to recover for structural damage to his home under his homeowner’s policy. Although the plaintiff 26–20

DISCOVERY RELATING TO EXPERTS

§ 26.13

did not disclose himself as an expert witness, the trial justice permitted him to opine on the cause of structural damage to his home. After a plaintiff’s verdict, the defendant appealed, claiming that the trial justice abused his discretion in admitting the plaintiff’s expert testimony. The Rhode Island Supreme Court agreed, holding that the opinion testimony should have been excluded because it was not timely disclosed in answers to expert interrogatories. Neri v. Nationwide Mut. Ins. Co., 719 A.2d at 1152. Hence, if a party fails to properly disclose expert testimony—including his or her own—the testimony will most likely be excluded. When in doubt, disclose. In professional liability actions, the plaintiff may question the defendant regarding the applicable standard of care. In such cases, the defendant may not claim that his or her opinion on the standard of care is privileged. Menard v. Blazar, 669 A.2d 1160 (R.I. 1996). The plaintiff can therefore establish the standard of care through expert testimony elicited from the defendant. Wilkinson v. Vesey, 110 R.I. 606 (R.I. 1972); see also Franco v. Latina, 840 A.2d 1110 (R.I. 2004). Working with a fact witness who may also serve as an expert presents its own complexities. For example, a fact witness can be deposed at any time. If a physician forms an opinion while treating a patient, that opinion is discoverable in the ordinary course of fact discovery. If the plaintiff retains the same treating physician to render additional opinions, those additional opinions are not discoverable until expert discovery. At that time, opposing counsel is entitled, at his or her own expense, to depose the treating physician as a retained expert. The key is to distinguish between the opinions of the physician reached in the ordinary course of treatment and those opinions based upon additional review, research, or consideration at a litigant’s request. It may be advisable to conduct the fact deposition of a dual-capacity witness prior to working with him or her as an expert, particularly where it is necessary to provide additional factual information to the witness for expert review. A witness may not always accurately separate what he or she learned as a fact witness and what he or she later learned as an expert on the same matter. The last thing you want to do is confuse your own witness. Ethics Commentary Compensation of dual-capacity experts can raise ethical concerns. The majority view permits counsel to compensate a fact witness, such as a treating physician or retired in-house engineer, for his or her time in reviewing materials in preparation for testifying as a fact witness, regardless of whether the witness actually loses income by cooperating. State Bar of California Standing Comm. on Prof’l Responsibility and Conduct, Formal Op. 1997-149 (1997). Under this view, time devoted to testimony may similarly be compensated.

26–21

§ 26.13

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

State Bar of California, Formal Opinion No. 1997-149. However, the amount of compensation must be reasonable, may not be contingent on the outcome of the case, must not be a pretext to obtain favorable testimony, and must, upon inquiry, be disclosed to the jury. State Bar of California, Formal Opinion No. 1997-149. The minority view holds that an attorney may only compensate a cooperating witness for out-of-pocket expenses and lost earnings. State Bar of California, Formal Opinion No. 1997-149. This latter approach provides cold comfort to the salaried professional or retiree who is asked to review a complex matter or voluminous documents, which they have no legal obligation to do outside a deposition or courtroom. This issue has not been addressed by either the Rhode Island Supreme Court or the Rhode Island Ethics Advisory Panel.

If the plaintiff’s medical providers are expected to testify as to their evaluation and treatment of the plaintiff, without further expert opinion, it is still advisable (although probably not required) to identify them in answers to expert interrogatories. In this regard, it is customary to state that the party may call any treating provider identified in the plaintiff’s medical records and elicit expert testimony consistent with the findings stated therein.

§ 26.14

DISCOVERY CONCERNING NONTESTIFYING EXPERTS

In rare circumstances, it may be appropriate to obtain discovery from an opposing expert who has been retained as a consultant, but is not anticipated to testify at trial. Rule 26(b)(4)(B) provides two distinct bases upon which to conduct discovery into the work and conclusions of nontestifying experts. First, a party who has undergone a mental or physical examination pursuant to Rule 35(b) is entitled to obtain the report of the examining physician or medical provider. If the party undergoing the examination elects to request the report, he or she must produce any reports prepared by his or her own consulting medical providers. Second, the Rule permits discovery of facts known and opinions held by a consulting expert “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Super. R. Civ. P. 26(b)(4)(B). This Rule, like its federal counterpart, affords a strong presumption of confidentiality to the work of nontestifying experts. Thus, in almost all instances, counsel can expect that the conclusions of such consulting experts will remain confidential. However, there are “exceptional circumstances” which will render the expert’s work discoverable.

26–22

DISCOVERY RELATING TO EXPERTS

§ 26.14

Cases permitting discovery into a nontestifying expert’s work product usually involve situations in which important physical evidence has been examined by the expert and is thereafter lost, destroyed, or otherwise rendered unavailable. Discovery may also be permitted where a transient condition is documented, photographed, or otherwise recorded by the expert. In either circumstance, access to the consulting expert’s work product will likely be ordered, even if the expert or party hiring the expert had no role in rendering the evidence unavailable. Town of N. Kingstown v. Ashley, 374 A.2d 1033 (R.I. 1977) (decided under old Rule 26(b)(2)). A party should exercise reasonable diligence in discovering and seeking access to physical evidence possessed by an opponent. An unreasonable delay in doing so could result in the court denying discovery into the opposing consulting expert’s conclusions. Borello v. Barry Hyman Co., 651 A.2d 734 (R.I. 1994) (decided under old Rule 26(b)(2)) (where moving parties had failed to exercise reasonable diligence to inspect physical evidence, trial court had discretion to deny discovery into the opposing consulting expert’s opinions, permitting discovery only into the facts obtained by the expert). As a practical matter, access to discoverable work product of an opposing consulting expert needs to be obtained before expert discovery commences. Therefore, when warranted, a specific interrogatory should be propounded to determine whether your opponent has information concerning unavailable physical evidence. Although you may be met with an objection, persistence should reveal whether any such evidence exists. If it does, you should be able to obtain the evidence relatively early in the case with a motion to compel. This will allow you to timely provide that information to your expert and prepare for expert discovery. If the opposing party or expert negligently or intentionally lost or destroyed the evidence, you will also be entitled to a spoliation instruction. Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183 (R.I. 1999). Even if the opposing consulting expert did not produce any tangible work product, it still may be possible to obtain discovery from him or her. If the expert observed a particular condition or event, his or her knowledge and conclusions should still be discoverable even if they were not reduced to writing, if you meet the Rule 26(b)(4)(B) standard. An interrogatory will be necessary to learn the identity of any such person and you will likely need to depose him or her. A party should not be permitted to avoid disclosure of discoverable information by directing the expert not to document his or her observations. In Rhode Island, a party may not obtain discovery from an opponent’s in-house consulting expert merely because the expert works on other related matters. In Rhode Island Depositors Economic Protection Corp. v. Mapleroot Development Corp., 715 A.2d 1260 (R.I. 1998), the defendant borrower claimed that the 26–23

§ 26.14

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

plaintiff’s in-house accounting expert, who was working primarily on other litigation, thwarted a settlement between the parties. The defendant sought to depose this expert and obtain documents prepared by him regarding the proposed settlement. The motion justice permitted this discovery, reasoning that the expert had not been specially retained for that particular case. The Rhode Island Supreme Court reversed, holding that it was immaterial whether the expert was retained for the particular case at hand. Since the expert was not anticipated to testify at trial, his activities and conclusions were subject to qualified immunity for consulting experts under Rule 26(b)(4)(B). Moreover, because the documents were created in anticipation of litigation, they were entitled to an extra layer of protection under Rule 26(b)(3). R.I. Depositors Econ. Prot. Corp. v. Mapleroot Dev. Corp., 715 A.2d at 1264–65.

§ 26.15

COMPARISON WITH FEDERAL PRACTICE

Expert discovery in federal court differs substantially from Rhode Island state practice. Most notably, expert interrogatories are no longer employed in federal practice. Rather, experts must now produce and sign a detailed written report that is provided to opposing counsel. Additional differences between state and federal practice exist. Practice Note Remember that state procedural rules, and the case law interpreting those rules, are generally inapplicable in federal court. Hanna v. Plumer, 380 U.S. 460 (1965).

Rule 26(a)(2) of the Federal Rules of Civil Procedure provides the substantive and procedural framework for expert disclosure in federal court. The Rule provides as follows: (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the 26–24

DISCOVERY RELATING TO EXPERTS

§ 26.15

case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. (C) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the other party’s disclosure. (D) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e). Fed. R. Civ. P. 26(a)(2). The extensive disclosures which must be contained in an expert report may present a challenge in retaining an expert. For example, Rule 26(a)(2)(B)(v) requires the report to list all cases in which the expert testified at trial or deposition 26–25

§ 26.15

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

in the preceding four years. If a potential expert is unable or unwilling to provide this information, the expert’s opinion will likely be excluded on that basis alone. Prior to retaining the expert, make sure he or she is willing to prepare the required report at the appropriate time. Working with experts can be somewhat different under federal practice. Although core work product imparted to an expert is protected under Rhode Island state practice, Crowe Countryside v. Novare Eng’rs, 891 A.2d 838, 846–48 (R.I. 2006), this is not necessarily so in federal practice. The federal Rule requires an expert to disclose all information “considered” in forming his or her opinions. Fed. R. Civ. P. 26(a)(2)(B)(ii). Moreover, federal courts have ruled that even core attorney work product, when considered by an expert, is discoverable. See, e.g., Elm Grove Coal Co. v. Dir., Office of Workers’ Comp. Programs, 480 F.3d 278, 299–303 (4th Cir. 2007) (and cases cited). Courts have similarly required production of draft reports prepared by or on behalf of an expert. Elm Grove Coal Co. v. Dir., Office of Workers’ Comp. Programs, 480 F.3d at 299–303. The federal trend of permitting discovery of attorney-expert communications and draft reports has met with considerable trepidation and justified resistance. In 2006, the American Bar Association (ABA) adopted a resolution recommending that the federal rules (and any similar state rules) be amended to protect core attorney communications and draft expert reports from discovery. See ABA House of Delegates, Resolution of August 7–8, 2006, available at http://www .abanet.org/litigation/standards/docs/120a_policy.pdf. The ABA further recommended that, until such changes are adopted, counsel enter into voluntary stipulations protecting such information from discovery. The deadline for exchanging expert reports is customarily set by the court, with input from counsel, at the Rule 16 conference. Absent a stipulation or court order, expert disclosures must be exchanged at least ninety days before the trial date. Fed. R. Civ. P. 26(a)(2)(C). Rebuttal disclosures may be submitted thirty days thereafter. Fed. R. Civ. P. 26(a)(2)(C). With the court’s assent, the parties may, by stipulation, modify or eliminate altogether the obligation to exchange expert reports. Fed. R. Civ. P. 26(a)(2)(B). The contents of the report, as set out in Rule 26(a)(2)(B), are mandatory. Failure to provide this required information will ordinarily result in exclusion of the expert’s opinion. Fed. R. Civ. P. 37(c)(1); see Pena-Crespo v. Commonwealth of Puerto Rico, 408 F.3d 10, 13 (1st Cir. 2005). The report must be signed by the expert. In federal practice, expert depositions are permitted as-of-right after expert reports are provided. Fed. R. Civ. P. 26(b)(4)(A). The deposing party is required to “pay the expert a reasonable fee for time spent in responding to discovery.” 26–26

DISCOVERY RELATING TO EXPERTS

§ 26.15

Fed. R. Civ. P. 26(b)(4)(C). Unlike in state practice, the Rule does not limit the expert’s compensation to time spent testifying; compensation for preparation time may therefore be permitted. There is no federal analogue to state Rule 32(a)(3)(E) which would permit a de benne esse deposition of an available medical witness or expert. Thus, in federal practice, any such deposition will be hearsay and inadmissible unless the witness is legally unavailable or another exception to the hearsay rule applies. Of course, a party may waive any hearsay objection or the parties may stipulate to the admissibility of expert or medical witness depositions. Unlike in state practice, if an essential expert’s testimony is excluded in federal court, district judges are not encouraged (much less required) to afford the proponent an opportunity to obtain a substitute expert. Thus, exclusion of necessary expert testimony signals the death knell of the applicable claim or defense.

26–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

26–28

DISCOVERY RELATING TO EXPERTS

EXHIBIT 26A—Sample Expert Interrogatory INTERROGATORY NO. 1: Please identify each person you intend to call as an expert witness at the trial of this action, and for each, please state: a.

the name, business address and specialty of the expert;

b.

the subject matter on which the expert is expected to testify;

c.

the substance of the facts and opinions to which the expert is expected to testify; and

d.

a summary of the grounds for each opinion.

26–29

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

26–30

DISCOVERY RELATING TO EXPERTS

EXHIBIT 26B—Sample Scheduling Order STATE OF RHODE ISLAND

SUPERIOR COURT

PROVIDENCE, SC. Plaintiffs

: :

VS.

:

C. A. NO.:

: Defendants

: :

SCHEDULING ORDER This action came before the Court on May 1, 2009, the Honorable _________, presiding, on defendant’s motion for a scheduling order pursuant to Rule 26(b)(4)(A). After consideration, [and/or by agreement of the parties] it is hereby ORDERED that expert discovery shall proceed in accordance with the following schedule: 1.

that plaintiffs shall identify their testifying experts on or before December 1, 2009. This identification shall include the subject matter on which each expert is expected to testify, the substance of the facts and opinions to which each expert is expected to testify, and a summary of the grounds for each opinion;

2.

that defendants shall identify their testifying experts on or before January 1, 2010. This identification shall include the subject matter on which each expert is expected to testify, the substance of the facts and opinions to which each expert is expected to testify, and a summary of the grounds for each opinion;

3.

that plaintiffs shall identify any rebuttal expert witnesses or testimony on or before February 1, 2010. This identification shall include the subject matter on which each expert is expected to testify, the substance of the facts and opinions to which each expert is expected to testify, and a summary of the grounds for each opinion;

26–31

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

4.

that expert depositions shall be permitted and may commence on or after January 1, 2010;

5.

that deposed experts be compensated at each expert’s reasonably established hourly rate for the time spent in deposition only;

6.

that expert depositions shall be completed by April 1, 2010; and

7.

that this case shall be ready for trial on May 1, 2010. PER ORDER: Deputy Clerk

ENTER:

Associate Justice Presented by: Counsel for Defendants

Attorney

Bar No. 4707

CERTIFICATION I hereby certify that a true and accurate copy of the within document was sent by regular mail, postage prepaid, on the _____ day of May 2009.

26–32

CHAPTER 27

Differences Between Federal and State Discovery Practice Brooks R. Magratten § 27.1

Introduction ........................................................................ 27–1

§ 27.2

Rule 26................................................................................. 27–2

§ 27.3

§ 27.2.1

Required Disclosure ............................................ 27–2

§ 27.2.2

Insurance ............................................................. 27–3

§ 27.2.3

Experts ................................................................ 27–3

§ 27.2.4

E-Discovery......................................................... 27–3

§ 27.2.5

Supplementing Responses................................... 27–4

§ 27.2.6

Discovery Conference; Discovery Plan............... 27–4

Rule 30................................................................................. 27–4 § 27.3.1

Timing ................................................................. 27–4

§ 27.3.2

Limit on the Total Number of Depositions.......... 27–4

§ 27.3.3

Notice .................................................................. 27–5

§ 27.3.4

Method of Recording Testimony......................... 27–5

§ 27.3.5

Duration of the Deposition.................................. 27–5

§ 27.4

Rule 31................................................................................. 27–5

§ 27.5

Rule 32................................................................................. 27–5

§ 27.6

Rule 33................................................................................. 27–6 § 27.6.1

Service and Timing of Interrogatories................. 27–6

§ 27.6.2

Responses............................................................ 27–6

§ 27.6.3

Motions to Compel.............................................. 27–6 27–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 27.6.4

Option to Produce Business Records ...................27–7

§ 27.7

Rule 34 .................................................................................27–7

§ 27.8

Rule 35 .................................................................................27–7

§ 27.9

Rule 36 .................................................................................27–7

§ 27.10 Rule 37 .................................................................................27–8

27–ii

CHAPTER 27

Differences Between Federal and State Discovery Practice Brooks R. Magratten

Scope Note In this chapter, the reader is advised on the differences between Rhode Island and federal discovery practice. The chapter focuses on Rules 27 and 30 through 37. The chapter also discusses differences that are not apparent in the Rules themselves.

§ 27.1

INTRODUCTION

Thanks to the efforts of the Rhode Island Superior Court Bench/Bar Committee and Professor Robert Kent, the Rhode Island Superior Court Rules of Civil Procedure underwent wholesale revision in 1995 to harmonize those rules with the then-existing Federal Rules of Civil Procedure. Due to the 1995 revisions, the overall structure of the state and Federal Rules of Civil Procedure is similar. In 2006, the Superior Court Bench/Bar Committee undertook a second review for the purpose of determining what further changes ought to be considered to harmonize the federal and state rules; to reconcile the state rules with the Superior Court’s local practices and procedures; and to reflect more recent Rhode Island Supreme Court case law. Professor Kent again served as official Reporter. Some substantive differences remain, many of which are addressed below. There are two fundamental differences between state and federal discovery practice that are not apparent from the rules themselves. The first difference relates to the method by which cases are assigned to judges. While certain cases in Superior Court may be assigned to a single justice for case management purposes, most are not. Due to the high number of civil and criminal filings in the state court system, most cases are assigned to a justice on the first day of trial. Most discovery matters, therefore, are addressed by whatever justice may be sitting on a general motion calendar or on the trial calendar at a given time. This impacts

27–1

§ 27.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

how discovery motions are filed in state court, how pretrial discovery orders are entered (or, as is more often the case, not entered), and the reluctance of some justices to render discovery or substantive rulings that might substantially impact the trial of the case. The Rhode Island federal court, like most other federal courts, assigns a judge to a case at the commencement of the case. All pretrial matters are thereafter referred to that judge or to a magistrate judge who reports to the judge assigned to the case. This structure lends itself more easily to pretrial scheduling orders, which are entered in nearly every civil case. Counsel must also be mindful that arguments raised to the court in the discovery phase will most likely be heard and decided by the same judge who will try the case. The second fundamental difference between federal and state practice is time. Three to ten months is a standard range for pretrial discovery in federal court. Discovery in state court can begin at the very commencement of the case and continue up to trial years later. Consequently, federal practice generally requires a close watch of the calendar and vigilance in determining what discovery is needed for trial and whether sufficient time remains for that discovery. More specific differences in discovery under the court systems are addressed below.

§ 27.2

RULE 26

§ 27.2.1 Required Disclosure Federal Rule 26(a) identifies information a litigant must disclose at various stages of an action. These requirements are absent from the state rule. Enforcement of initial disclosures in federal practice is selective. Litigants are more likely to engage in initial disclosures under Fed. R. Civ. P. 26((a)(1) in a complex case, or where counsel have agreed to exchange disclosures. The federal court does not often monitor or enforce initial disclosures. The state court practitioner determines his or her duty to produce information according only to the specific discovery requests propounded on him or her. The federal practitioner similarly must study the discovery requests propounded, but also must consider his or her obligations to disclose under federal Rule 26(a). The failure to do so, particularly in the case of expert disclosures, may result in evidence barred at trial.

27–2

FEDERAL AND STATE DISCOVERY PRACTICE

§ 27.2

§ 27.2.2 Insurance State Rule 26 specifically allows discovery of an insuring agreement that may cover all or part of a judgment that would enter in the case. See Super. R. Civ. P. 26(b)(2). The federal rules provides for the automatic disclosure of such agreements. See Fed. R. Civ. P. 26(a)(1)(A)(iv).

§ 27.2.3 Experts The state Rule allows a party, by use of interrogatories, to obtain limited information about a testifying expert. In addition to the identity of an identifying expert, the opposing party may discover • the subject matter on which the expert is expected to testify, • the substance of the facts and opinions to which the expert is expected to testify, and • a summary of the grounds for each opinion. The federal Rule, by contrast, imposes a duty of disclosure, whether or not a discovery request regarding expert testimony has been propounded. Disclosures of experts under federal rules are considerably broader than information obtainable under the state Rule. In addition to the discovery of experts permitted under the state Rule, the federal Rule requires disclosure of • the expert’s qualifications, including a list of all publications authored in the previous ten years; • a list of cases in which the expert has testified (at trial or by deposition) in the past four years; and • a statement of compensation.

§ 27.2.4 E-Discovery The federal rules specifically address discovery of electronically stored information. They recognize a limitation on such discovery from sources a party identifies as not reasonably accessible because of undue burden cost. The state rules presently contain no counterpart.

27–3

§ 27.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 27.2.5 Supplementing Responses Both federal and state rules provide that discovery responses must be seasonably updated after a responding party learns additional information that makes a prior response inaccurate or incomplete.

§ 27.2.6 Discovery Conference; Discovery Plan Federal Rule 26 imposes a duty on the parties to confer early in the case, address issues likely to arise in the discovery process, and submit to the court a written discovery plan. See Fed. R. Civ. P. 26(f). There is no counterpart in the state Rule, although the parties will often seek court approval of a discovery scheduling order. In addition, the Superior Court presiding justice and the justices in charge of the Business and Formal and Special Cause calendars will from time to time promulgate administrative orders governing the scheduling and discovery plans and other pretrial orders.

§ 27.3

RULE 30

§ 27.3.1 Timing Federal Rule 30, like state Rule 30, permits the deposition of persons by oral examination. The state rules do not place limitations on how early or late in the proceedings a deposition may be taken. The federal rules, by contrast, do not permit depositions or other forms of discovery until the parties have conferred pursuant to Fed. R. Civ. P. 26(d)(1). Most federal court civil cases will have a pretrial order entered that will impose a deadline for the completion of discovery, including depositions. It is not unusual for the pretrial order to include staggered deadlines for expert disclosures and expert depositions.

§ 27.3.2 Limit on the Total Number of Depositions State rules prescribe no limit on the number of depositions that may be noticed in an action, although should a party test the bounds of reasonableness, other parties may seek relief under Super. R. Civ. P. 26(c). Federal rules, by contrast, require leave of court when a deposition would result in more than ten depositions being taken collectively by the parties pursuant to Fed. R. Civ. P. 30 or 31.

27–4

FEDERAL AND STATE DISCOVERY PRACTICE

§ 27.3

§ 27.3.3 Notice There are few differences in the content of a deposition notice under federal or state rules. In neither court should the notice be filed. Both federal and state rules permit the deposition of an organization by identifying the subjects of examination in the notice. The burden then shifts to the responding organization to produce knowledgeable witnesses.

§ 27.3.4 Method of Recording Testimony Both the federal and state rules require the noticing party to identify the method of recording testimony in the deposition notice. The requirement is well founded where, for example, a deposition is to be videotaped. Fairness to the witness and opposing counsel requires advance notice.

§ 27.3.5 Duration of the Deposition Federal rules limit a deposition to seven hours, unless otherwise stipulated or ordered by the court. State rules place no explicit limit but, again, should a litigant test the bounds of reasonableness, the deponent may move for relief under Rule 26(c).

§ 27.4

RULE 31

The procedures for a Rule 31 deposition by written questions are similar under the federal and state rules. The federal Rule imposes the added requirement that leave of court be obtained where the proposed deposition would exceed the tendeposition limitation or if the deposition is noticed to occur before the time permitted under Fed. R. Civ. P. 26(d).

§ 27.5

RULE 32

Federal and state Rule 32 are similar. One key difference is that a witness may be “unavailable” for purposes of introducing deposition testimony in a state court action if the witness is out of state. Under federal rules, the witness must be outside subpoena range (i.e., more than 100 miles) to be considered unavailable.

27–5

§ 27.6

§ 27.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

RULE 33

§ 27.6.1 Service and Timing of Interrogatories Service of written interrogatories is the same under federal and state systems. Interrogatories are ordinarily served by first-class mail, unless parties have previously agreed to electronic service. Interrogatories are not filed in court. Under state rules, interrogatories may be filed any time after the commencement of an action, except that leave of court is required to propound interrogatories within sixty days following service of process. Service of interrogatories under the federal rule may occur only after the Rule 26(f) conference. Interrogatories in state court are limited to thirty; in federal court, twenty-five.

§ 27.6.2 Responses Federal and state rules are similar with regard to answering interrogatories. Each interrogatory should be reprinted, with the response following each interrogatory. Responses must be signed under oath. Responses are not filed in court. Both federal and state rules allow for production of business records in certain circumstances in response to an interrogatory. Both federal and state rules require objections to be stated with specificity or else they may be deemed waived.

§ 27.6.3 Motions to Compel Under the federal and state systems, Rule 37 permits a motion to compel when interrogatories have not been answered or have been answered incompletely. In state court, the motion is filed with the movant assigning the motion to a preset hearing date. Practitioners should check court calendars to see when discovery motions are heard. Should no response to the motion be filed, certain motions may be granted by rule of court (i.e., without a formal ruling from the bench). See Super. R. Civ. P. 7(b)(3). Rule-of-court motions are discussed in greater depth in A Practical Guide to Discovery and Depositions in Rhode Island ch. 1 (MCLE, Inc. 2010). Motions to compel are filed in federal court without assignment to any particular hearing date. Once a response is filed—or if the time for filing a response has lapsed—the motion will be referred to the judge assigned to the case. The judge, in turn, might assign the motion to a magistrate judge for a resolution. The court may or may not schedule a hearing.

27–6

FEDERAL AND STATE DISCOVERY PRACTICE

§ 27.6

Federal practitioners, who may be operating under a tight discovery deadlines, should be mindful that it can take considerably longer to obtain a ruling on a motion to compel in federal court than in state court. Both federal Rule 37 and state Rule 37 require the parties to confer prior to filing the motion.

§ 27.6.4 Option to Produce Business Records Both federal Rule 33 and state Rule 33 permit the responding party to produce business records in response to certain types of interrogatories. The key requirement under either court system is that the burden to ascertain the answer to an interrogatory from a collection of documents must be equal for both the requesting and responding parties.

§ 27.7

RULE 34

Federal and state Rule 34 are fundamentally similar. Neither Rule limits the number of requests that may be served. The state Rule requires responses to requests within forty days of service; the federal Rule, thirty days. Requests may be served at any time after commencement of the action in state court, except that a responding party has sixty days to respond after service of process. Requests under the federal rules may be served after the initial Rule 26(f) conference. Neither the requests nor the responses thereto are filed in either court. When responding, the text of the request should be reprinted, with the responses or objections list below. Per Local Rule 34, when a responding party in federal court produces fifty or more pages of documents, each page is given a “Bates” number. Loc. R. Cv 34(b)(2).

§ 27.8

RULE 35

These are no substantive differences between federal Rule 35 and state Rule 35.

§ 27.9

RULE 36

There are no substantive differences between federal Rule 36 and state Rule 36. The time at which requests to admit may be served varies under federal and state court systems. Requests under the federal rules may be served after the Rule 26(f) conference. There remains some debate about whether requests to 27–7

§ 27.9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

admit may be served after the close of discovery. The debate centers on the view that requests to admit are not “discovery” in the sense that they are often used to identify facts that can be stipulated to, or to streamline evidentiary foundations. The federal practitioner is advised to check with the clerk to the assigned judge if a question arises about whether requests to admit served after the close of discovery are proper. Requests to admit in state court may be served with the commencement of the action, in which case the usual thirty-day period to respond is extended to fortyfive days. Requests can be served up to trial. The time to respond to requests— normally thirty days—can be lengthened or shortened by stipulation or court order under both sets of rules.

§ 27.10

RULE 37

The differences between federal Rule 37 and state Rule 37 generally follow the courts’ different methods adjudicating motions. The most common motions that arise under Rule 37 are the motions to compel and for protective order. The movant in the state system must file such motions with a specified hearing date. Counsel should check court calendars to see when nondispositive motions are heard. Certain motions filed without objection may be granted by rule of court. See Super. R. Civ. P. 7(b)(3). The movant in federal court, conversely, does not assign his or her motion to any specific hearing date. Once the motion is filed, the clerk will wait for other parties to respond and then refer all motion papers to the judge assigned to the case. The judge may rule on the motion, with or without a hearing, or may refer the motion to a magistrate judge, who may likewise rule with or without a hearing. If a motion to compel or for a protective order—filed in either federal or state court—concerns specific discovery requests or responses, the movant should attach the requests or responses at issue to the motion.

27–8

CHAPTER 28

Discovery Before the RICHR Francis A. Gaschen § 28.1

Introduction ........................................................................ 28–1

§ 28.2

Investigatory Phase ............................................................ 28–2

§ 28.3

Adjudicatory Phase............................................................ 28–5

§ 28.4

Request for Admissions...................................................... 28–6

§ 28.5

Requests for Production of Documents ............................ 28–6

§ 28.6

§ 28.5.1

Housing ............................................................... 28–6

§ 28.5.2

Employment ........................................................ 28–7

Interrogatories.................................................................... 28–9 § 28.6.1

Housing ............................................................... 28–9

§ 28.6.2

Employment ........................................................ 28–9

§ 28.7

Depositions........................................................................ 28–12

§ 28.8

Close of Discovery ............................................................ 28–12

§ 28.9

Ethical Considerations..................................................... 28–12

28–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

28–ii

CHAPTER 28

Discovery Before the RICHR Francis A. Gaschen

Scope Note This chapter concerns special practices pertaining to discovery practice in Rhode Island’s primary antidiscrimination agency, the Rhode Island Commission for Human Rights (RICHR.) The investigatory and adjudicatory phases are discussed, as are the various types of discovery, including interrogatories, requests for production of documents, and depositions. Featured is a section on ethical considerations.

§ 28.1

INTRODUCTION

The Rhode Island Commission for Human Rights (RICHR, or Commission) is the state’s primary antidiscrimination agency, created by the Rhode Island General Assembly in 1949. The RICHR has jurisdiction over the following state statutory proceedings: • the Fair Employment Practices Act, R.I. Gen. Laws § 28-5-1, et seq.; • the Fair Housing Practices Act, R.I. Gen. Laws § 34-37-1, et seq.; • the Hotel and Public Places Act, R.I. Gen. Laws § 11-24-1, et seq.; • the Prevention and Suppression of Contagious Diseases– HIV/AIDS Act, R.I. Gen. Laws § 23-6.3-11 and 23-6.3-12; • the Civil Rights of People with Disabilities Act, R.I. Gen. Laws § 42-87-1, et seq.; and • the Equal Rights of Blind and Deaf Persons to Public Facilities Act, R.I. Gen. Laws § 40-9.1-1, et seq. In addition, the RICHR has contractual agreements with the U.S. Equal Employment Opportunity Commission and the U.S. Department of Housing and Urban Development to assist in the enforcement of the following federal laws: 28–1

§ 28.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• Age Discrimination in Employment Act of 1967, • Title VII of the Civil Rights Act of 1964, • Americans with Disabilities Act (ADA), and • Title VIII of the Federal Fair Housing Act. The Commission’s jurisdiction is strictly statutory. In employment cases, the Commission handles only those Rhode Island discrimination claims against an employer of four or more employees where the charge alleges discrimination on the basis of race, color, religion, ancestral origin, sex, age, sexual orientation, and/or gender identity or expression. With respect to disability discrimination, the Commission covers all employers, regardless of the number of employees. The Commission also has jurisdiction over housing discrimination claims alleging discrimination based on the above-noted bases and familial status, marital status, or on one’s status as a victim of domestic abuse. Rhode Island law offers broader protection than federal law. The RICHR was created to promptly and efficiently investigate and adjudicate charges without formal court proceedings. The Commission’s investigators are charged with the responsibility of investigating charges and making recommendations on probable cause to one of seven governor-appointed commissioners. When there is a finding that probable cause exists to believe that any unlawful discriminatory practices have been or are being engaged in by the respondent, the RICHR process moves from the investigatory to the adjudicatory phase.

§ 28.2

INVESTIGATORY PHASE

Parties are not permitted to conduct discovery during the investigatory phase of the proceedings. See Commission Rules & Regulations, Rule 14.01(A). As recognized by the U.S. Supreme Court in Hannah v. Larche, 363 U.S. 420, 448, (1960), there are legitimate interests in preventing “the sterilization of investigations by burdening them with trial-like procedures.” The goal of the RICHR is to conduct informal fact-finding to enable the investigator to make a recommendation to a preliminary investigating commissioner on the issue of probable cause. Counsel for parties should be aware of the discovery tools used by the investigator. Investigators are permitted wide latitude when investigating the substance of a charge. They are empowered by Commission Regulation 5.01, which provides: Whenever authorized by law, the Commission may conduct preliminary investigations into matters under 28–2

DISCOVERY BEFORE THE RICHR

§ 28.2

its jurisdiction. Such investigations shall proceed with all dispatch and shall be designed to obtain adequate information upon which the Commission can determine whether probable cause exists to believe that any unlawful discriminatory practices have been or are being engaged in by the respondent. See also R.I. Gen. Laws § 28-5-13(6), (7). Investigators routinely serve requests for information (RFIs) on parties, which are comparable to requests for production under Super. R. Civ. P. 34. While some of the documents requested could be considered “routine” (such as workforce profile, employee handbook, witness statements, investigatory reports, disciplinary records, EEO-1 forms, personnel files, etc.), the allegations of the charge and the respondent’s response thereto will dictate what information will be requested by the investigator. Because the RICHR is an independent agency conducting an investigation in the exercise of the police power of the state, its power to obtain information is broad. In the Kent County Superior Court case of Atturio v. Evora, CA No. KC 08-0807 (R.I. Super. Ct. 2009), cert. denied, the Commission’s right to review personnel files was upheld. In that case, the respondent had refused to allow the requested review, claiming that some of the files contained confidential medical information and that the scope of inquiry was overly broad. The court upheld the Commission’s denial of the employer’s motion to quash the Commission’s subpoena duces tecum. Investigators have the right to subpoena parties and witnesses to further the investigation. See Commission Rules & Regulations, Rule 15.01; R.I. Gen. Laws § 28-5-13(7)(i). Subpoenas are used primarily when a party refuses to produce documents requested in an RFI. As a general rule of practice, attendance at the subpoena hearing is not required provided that the requested documentation is supplied in advance of the hearing. Subpoenas also are used to bring parties and/or witnesses to a hearing so that the investigator can obtain information to further the investigation. Rule 45(e) of the Superior Court Rules of Civil Procedure provides that failure to obey a subpoena may be deemed a contempt of the court in which the action is pending. The procedure at the Commission under RICHR Rule 15.01(F) and R.I. Gen. Laws § 28-5-13(7)(iii) is that the RICHR may apply to the Superior Court for a show cause hearing on the issue of contempt for failure to obey a Commission subpoena. In the Superior Court case of RICHR v. Gilchrist, PC No. 06-1861 (R.I. Super. Ct. 2007), the RICHR petitioned the court to issue a citation compelling the defendant to show cause why he, a nonparty to an ongoing 28–3

§ 28.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

investigation, should not be found in contempt for repeated failures to comply with a Commission-issued subpoena. After issuance of the citation and service upon the recalcitrant witness, the parties agreed to the payment of a civil penalty to the General Fund of the State of Rhode Island in the amount of $1,200, in lieu of a hearing and a finding of contempt. The right of the RICHR to demand compliance with its discovery requests is not thwarted by the filing of bankruptcy by a respondent. While the Bankruptcy Code provides in Section 362(a) for an automatic stay of proceedings against a debtor, Section 362(b)(4) provides that actions by a governmental agency to enforce its police and regulatory powers are not affected by the automatic stay. The right of the RICHR to demand compliance with its discovery requests from a respondent in bankruptcy was upheld in the Chapter 11 case of In the Matter of Northwest Airlines Corp., No. 05-17930 (ALG) (S.D.N.Y. 2007). Receivership proceedings brought in the Rhode Island Superior Court differ from actions in Bankruptcy Court in that state law does not provide a police power exception that automatically permits the Commission to continue discovery against parties to a charge where one party has been petitioned into receivership. The language of orders appointing temporary and permanent receivers explicitly prohibits, inter alia, the continuation of any action against a party in receivership. In those instances where a party before the Commission has been petitioned into receivership, the Commission routinely applies to Superior Court for relief from the stay so that it may continue its investigation. Practice Note Discovery on the issues of intentionality and malice are relevant because the filing of a petition in bankruptcy may offer no protection to a respondent against whom the Commission had rendered a decision finding intentional discrimination. Collateral estoppel may bar relitigation of that finding, and willful and malicious injuries are nondischargeable under Section 523(a)(6) of the Bankruptcy Code. In the Matter of Antonelli, No. 09-1013, __ B.R. __ (Bankr. 2010).

Investigators routinely subpoena a copy of relevant filings by parties with other agencies, such as the Department of Labor and Training (DLT). Counsel should advise their clients, either complainants or respondents, that their claims before the Commission will be compared with their submissions before the DLT, as well as other state and/or federal agencies. Another discovery tool utilized by some investigators is the predetermination conference (PDC). The investigator may schedule a PDC with the parties and their witnesses before a commissioner. The purpose of the PDC is to bring the parties together so that the investigator and commissioner may ask particularized 28–4

DISCOVERY BEFORE THE RICHR

§ 28.2

questions and assess the credibility of parties in a setting that is less formal than a hearing. No testimony is under oath nor are parties cross-examined. Counsel should attend a PDC with their client fully apprised of the purpose for the conference. While rare, charges can be dismissed at a PDC or the commissioner may make an immediate finding of probable cause. During an investigation, counsel will have frequent contact with the investigator handling that case. Counsel for all parties are welcome to make suggestions to the investigator as to documents to request, questions to ask, and witnesses who would be helpful in the fact-finding process. However, the decision as to what is relevant for purposes of the Commission investigation ultimately rests with the investigator.

§ 28.3

ADJUDICATORY PHASE

Once probable cause has been found by a preliminary investigating commissioner, if conciliation is unsuccessful and no election has been made to have the case heard in the Superior Court, a complaint, with a hearing date, issues in the case. The preliminary investigating commissioner does not later participate in the hearing or adjudication of the complaint. If neither party has elected to remove the case from the Commission in a timely manner, the adjudicatory phase of the proceedings commences. None of the statutes over which the Commission has jurisdiction explicitly grants the parties a right to discovery. The Rhode Island Supreme Court, however, held in La Petite Auberge, Inc. v. RICHR, 419 A.2d 274, 282 (R.I. 1980) that “opportunities to conduct discovery would appear consistent with the goals of a smoothly conducted and efficient hearing.” In response to this decision, the Commission, to ensure fairness, promulgated Rule 14, which provides that after a finding of probable cause the parties shall have the same rights of discovery as are provided in the Superior Court Rules of Civil Procedure. Once a ruling as to probable cause has been made, the investigatory file of the Commission is open for inspection by the parties and their counsel, subject to the removal of privileged materials pursuant to Rule 14.02 of the Commission’s Rules and Regulations. Review of the investigator’s file may disclose previously unavailable documentation and assist in drafting more specific discovery. Practice Note In the investigator’s file, only the complaint and answer are part of the record at the time of the hearing. All other documents must be introduced by counsel in the course of the hearing.

28–5

§ 28.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Discovery before the Commission during the adjudicatory phase follows the practice before the Superior Court, with few exceptions. While written motions are accepted, there is no motion calendar at the Commission for oral argument. Motions are decided by commissioners and written decisions are issued. The decisions are not reported by a service, but the Commission is in the process of putting them online.

§ 28.4

REQUEST FOR ADMISSIONS

A review of the investigator’s file may disclose documents important to your proof. As noted, these documents are not automatically part of the hearing file, but must be introduced at the hearing. Therefore, the use of a request for admissions can establish authenticity of those documents. As provided in Super. R. Civ. P. 36, if a party denies the authenticity of a document that is later proven, application can be made to the Commission for the costs incurred in proving the document’s authenticity.

§ 28.5

REQUESTS FOR PRODUCTION OF DOCUMENTS

To supplement the documents already in the investigator’s file, a request for production of documents can be useful. Without attempting to be exhaustive, a suggested list of documents to be requested follows. These suggestions are in addition to documents that counsel would request as a matter of course in a civil case. Because each case has its own particular fact pattern, modifications to the following suggestions will be in order.

§ 28.5.1 Housing If the charge alleges failure to reasonably accommodate a person’s disability, request: • documents that support the request, the denial, and the policy of considering accommodation requests; • documents that would prove that the complainant has a disability as defined in the law; and • copies of other discrimination complaints filed by the complainant or against the respondent.

28–6

DISCOVERY BEFORE THE RICHR

§ 28.5

If the charge alleges refusal to allow a support animal, request copies of pet policies and support animal policies, as well as documents from a qualified medical provider that outline the need for the support animal. If the charge alleges refusal to make a physical alteration or improvement to a building, request documents outlining: • the estimated costs of the alteration, • reasonable alternatives to the request, and • requests made in the last five years. If the charge alleges failure to rent to families with children, request: • copies of advertisement of rental unit, • copies of tenant policies, and • copies of the leases used over the last five years and copies of leases for current tenants.

§ 28.5.2 Employment In general, request: • employee handbooks, personnel manuals, related policies and procedures, and job descriptions; • personnel files of the parties involved in the complaint; • attendance and disciplinary records, performance reviews, and salary history; • copies of any other discrimination complaints by the complainant or against the respondent; • copies of any statements and correspondence between the parties; and • copies of filings with other agencies, such as the Workers’ Compensation Board, Social Security Administration, and the Department of Labor and Training. If the plaintiff was terminated as part of a reduction in force (RIF), request: 28–7

§ 28.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• documents that would outline the characteristics used for determining who was laid off and an organizational chart to assist in understanding the corporate workforce; • the preliminary and final list of employees targeted for layoff; • information on new hires, such as wages, length of time with the company, salary, and work schedule; and • the résumé or application of the new employee, reviews of the job performance of the new employee, information on whether it is a lateral move, and the prior and current job descriptions. With regard to sexual harassment claims, request: • copies of all written harassment policies, training manuals, and posters, if any; • reports on other sexual harassment claims against the alleged harasser, if any; and • copies of any written reports of internal investigations on any complaints by the complainant. Practice Note Section 28-5-7(i)(v) of the Rhode Island General Laws requires that an employer notify a complaining employee, in writing, of the disposition of investigations into internal harassment complaints in a timely manner after requested.

With regard to complaints alleging failure to accommodate a disability, request: • copies of hiring notices and/or job descriptions; • copies of policies regarding the application for and granting of requests for reasonable accommodations; • documents that outline the request for an accommodation and the response thereto, if any; and • a copy of the personnel file of the complainant’s immediate supervisor, with personal and medical information redacted.

28–8

DISCOVERY BEFORE THE RICHR

§ 28.6

§ 28.6

INTERROGATORIES

In addition to introductory interrogatories eliciting background information and those seeking information on experts and witnesses, the following suggestions address issues that may be pertinent to a particular claim.

§ 28.6.1 Housing In addition to the background interrogatories, propound interrogatories that request information on: • prior tenants, their current address, lease terms, and reason for termination of their lease; • rental or tenant history; and • whether or not there have been other charges filed by complainant or respondent, and the particulars of each. If the charge alleges failure to rent to families with children, propound interrogatories that request information on: • names and addresses of prior tenants who had children, and • amounts of security deposits from all tenants for the last five years. If the charge alleges failure to reasonably accommodate a tenant’s disability, ask about: • the request and the reasons for the denial of the accommodation; • the policy for considering accommodation requests, including the name of the person responsible for approval/denial; • the owner’s claim of hardship to accommodate and whether there were any other alternatives available; and • records of the granting/denial of other requests for reasonable accommodations.

§ 28.6.2 Employment In addition to the background interrogatories, propound interrogatories seeking information on: 28–9

§ 28.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• job descriptions of all persons involved in the complaint; • when the act complained of took place and the continuing nature of the discrimination, if at all; • damages, such as salary lost, effort made to locate new employment, and unemployment benefits paid, as well as psychological damages; • if there was retaliation, how it was taken, when, by whom, and what its effect was; • whether there have been other complaints of discrimination filed by either party; • who the complainant claims the comparators are, and what specific different treatment they received; and • what the past practices have been on this issue. If the charge alleges failure to reasonably accommodate a person’s disability, ask about: • the request and the denial of the accommodation; • the policy for considering accommodation requests, including the name of the person responsible for approval/denial; • the extent of the disability and how it affects a major life activity; • the complainant’s ability to perform the essential functions of the job, with or without a reasonable accommodation; • the employer’s claim of hardship to accommodate and whether there were any other alternatives available; • how the disability was made known to the employer; and • records of the granting/denial of other requests for reasonable accommodations. If the charge alleges harassment, ask about: • the specifics of the harassment, and the names of witnesses or any person with whom complainant discussed the discrimination;

28–10

DISCOVERY BEFORE THE RICHR

§ 28.6

• to whom, how, and when the harassment was reported; • what, if anything, the respondent did once they had knowledge of the harassment; and • whether an internal investigation of the claim made, and if so, by whom, when, and how a written copy of the disposition of the complaint was given to the complainant. If the charge alleges race or age discrimination, ask about: • the workforce profile, listing not only race and/or age, but also position and length of employment of the employees; • the recent hires and their race and/or age; • salary and bonus history; • policies regarding bonuses, raises, and other fringe benefits; and • a list of recently promoted individuals and their race and/or age. If the complainant’s employment was terminated pursuant to an RIF, ask: • for the names, addresses, and expertise of everyone involved with developing and/or implementing the RIF policy and procedures; and • whether the implemented plan differed from the original plan, and if so, in what manner. If the complainant claims a failure to accommodate a religious belief, ask: • what the specifics of the request were; • why it was denied; • whether there are any other possible, reasonable alternatives that would accommodate the request; • about the history of the respondent with regard to other requests for reasonable accommodations for religious purposes; and • about the policy of the respondent with regard to time off requests.

28–11

§ 28.7

§ 28.7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

DEPOSITIONS

More than any other form of discovery, depositions are useful tools to obtain information, get a first-hand view of the ability of a party or witness to testify, and of the party’s or witness’s credibility. Depositions create a record. Parties can issue their own subpoenas as in Superior Court practice.

§ 28.8

CLOSE OF DISCOVERY

A hearing date is noticed in the complaint. Prior to the hearing, a conference is held with counsel to review any outstanding issues relative to the hearing. It is at this conference that a date for the closure of discovery is established.

§ 28.9

ETHICAL CONSIDERATIONS

Although the RICHR is a state agency, attorneys practicing before the Commission are subject to the same ethical standards as applied to attorneys before the courts of this state. Commission Rules & Regulations, Regulation 3.02.

28–12

CHAPTER 29

Discovery in Alternative Forums—Administrative Agencies Charles S. Kirwan § 29.1

Introduction ........................................................................ 29–1

§ 29.2

The Administrative Procedures Act.................................. 29–1

§ 29.3

Preparing a Discovery Plan for Use in Agency Contested Cases.................................................................. 29–5

§ 29.4

§ 29.3.1

Ascertain the Specific Discovery Rules Applicable to the Cognizant Agency, Board, or Body................................................................ 29–6

§ 29.3.2

Special Discovery Targets and Tools in Agency Proceedings: The “Agency File” and Use of the Access to Public Records Act........................ 29–8

§ 29.3.3

Special Discovery Requests Peculiar to Administrative Agency Proceedings ................. 29–10

§ 29.3.4

The Discovery Plan Must Fit the Available Prehearing Time Table........................................29–11

§ 29.3.5

The Use of Subpoenas When Formal Discovery Mechanisms Are Unavailable ...........29–11

Administrative Discovery Case Law............................... 29–13

29–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

29–ii

CHAPTER 29

Discovery in Alternative Forums—Administrative Agencies Charles S. Kirwan

Scope Note This chapter discusses discovery in the context of developing the evidentiary record in contested cases adjudicated before administrative agencies and boards. It reviews the core provisions of the Rhode Island Administrative Procedures Act and suggests a methodology for developing a comprehensive discovery plan adapted to the context of administrative proceedings. The chapter concludes with a review of key Rhode Island Supreme Court and Superior Court cases adjudicating appeals taken with respect to administrative discovery disputes.

§ 29.1

INTRODUCTION

Discovery in connection with any particular administrative proceeding will be defined, and potentially will be limited, by the cognizant agency’s formal regulations and informal practices governing prehearing and hearing procedures. First, you must “discover” what statutes, regulations, administrative orders, and agency practices will control the particular agency proceeding that soon will determine your client’s legal rights and obligations. Only once you have ascertained what discovery procedures are allowed can you then begin to develop a workable administrative discovery plan to protect and advance your client’s best interests.

§ 29.2

THE ADMINISTRATIVE PROCEDURES ACT

At the outset, recall that virtually all agency proceedings are governed by the Rhode Island Administrative Procedures Act (APA), R.I. Gen. Laws § 42-35-1, 29–1

§ 29.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

et seq. (see R.I. Gen. Laws § 42-35-18(b) for exempted agencies and boards). While the APA is an inherently “generic” statute applicable to a great number of agencies, boards, and public bodies, the APA’s provisions entitled “Contested cases—Notice—Hearing—Records,” R.I. Gen. Laws § 42-35-9, highlight the core procedural due process rights applicable to virtually all contested cases conducted before administrative agencies and boards. Review the APA’s following procedural due process provisions and start outlining your discovery plan as you consider your procedural limitations, the substantive elements proof necessary to sustain your client’s burden of proof, and the specific statutory requirements applicable to your case preparations: (a) In any contested case, all parties shall be afforded an opportunity for a hearing after reasonable notice. (b) The notice shall include: (1) A statement of the time, place, and nature of the hearing; (2) A statement of the legal authority and jurisdiction under which the hearing is to be held; (3) A reference to the particular sections of the statutes and rules involved; (4) A short and plain statement of the matters inserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved and detailed statement shall be furnished. (c) Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved. (d) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default. (e) The record in a contested case shall include: (1) All pleadings, motions, intermediate rulings; (2) Evidence received or considered; 29–2

DISCOVERY IN ALTERNATIVE FORUMS

§ 29.2

(3) A statement of matters officially noticed; (4) Questions and offers of proof and rulings thereon; (5) Proposed findings and exceptions; (6) Any decision, opinion, or report by the officer presiding at the hearing; (7) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case. (f) Oral proceedings or any part thereof conducted under the provisions of this chapter shall be transcribed on request by any party. . . . (g) Findings of fact shall be based exclusively on the evidence and matters officially noticed. R.I. Gen. Laws § 42-35-9. In most instances, administrative agencies duly and routinely observe the core procedural due process rights expressly recited by the APA regarding proceedings in contested cases. However, just as a civil litigant must be vigilant to “make a record” for appeal purposes with respect to judicial errors involving procedural or evidentiary rulings, so too must an advocate be prepared to urge and to require agency compliance with applicable regulations and procedural rules. If an agency errantly or purposefully blocks necessary and appropriate discovery, then the agency ruling must be challenged, and, if warranted, timely appealed to Superior Court. A later section of this chapter discusses numerous illustrative Rhode Island Superior Court and Supreme Court cases in which litigants challenged discovery rulings in connection with contested cases adjudicated by administrative hearing officers or tribunals. These cases demonstrate that litigants are frequently forced, first at the agency level, and then in a Superior Court appeal, to contest the availability and scope of subpoenas to secure the “discovery” necessary to develop the evidentiary record in contested administrative cases. As with any proceeding, “interlocutory” appeals are rarely warranted and frequently are not viable or practical. Indeed, an interested person aggrieved by an agency discovery ruling or practice first must comply with all administrative exhaustion requirements. Nevertheless, the APA’s judicial review provisions, R.I.

29–3

§ 29.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Gen. Laws § 42-35-15(a), allow an aggrieved person to challenge agency errors in connection with rulings regarding subpoenas and other “discovery” issues. Note that R.I. Gen. Laws § 42-35-15(a) expressly allows an aggrieved person (including a nonparty claiming to be overburdened or oppressed by a subpoena) to seek immediate relief from an adverse agency action in the following circumstances that may often include adverse agency discovery rulings: “Any preliminary, procedural, or intermediate agency act or ruling is immediately reviewable in any case in which review of the final agency order would not provide an adequate remedy.” This APA provision allows an interested party to compel agency compliance with a person’s due process rights to secure necessary and appropriate discovery (or to be protected from unnecessary or intrusive discovery). The APA also includes the following “Rules of evidence” provision that applies to all contested cases: (1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the superior courts of this state shall be followed; but, when necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible under those rules may be submitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men and women in the conduct of their affairs. Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form; (2) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original; (3) A party may conduct cross examinations required for a full and true disclosure of the facts; (4) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the 29–4

DISCOVERY IN ALTERNATIVE FORUMS

§ 29.2

agency’s specialized knowledge; but parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. R.I. Gen. Laws § 42-35-10.

§ 29.3

PREPARING A DISCOVERY PLAN FOR USE IN AGENCY CONTESTED CASES

It is useful to view the APA’s “Rules of evidence” provision, R.I. Gen. Laws 4235-10, as the administrative equivalent to Rule 26 of the Superior Court Rules of Civil Procedure. Indeed, the APA’s “Rules of evidence” provision supplies the textual basis for virtually all the “discovery objections” typically disputed in most civil actions. Accordingly, unless expressly barred by a controlling agency rule or practice, when preparing an administrative case for hearing, just as you would in civil litigation, utilize all civil litigation discovery concepts to propound discovery requests, to interpose discovery objections, to seek protective orders, to compel essential discovery, and to fashion appropriate sanctions for noncompliance with discovery obligations. When fashioning a discovery plan for any case, key variables will define your objectives, your level of effort, and your timetable. A discovery plan for an expedited unemployment hearing before a referee at the Department of Labor and Training will bear no resemblance to a discovery plan for a rate setting proceeding to be conduct before the Public Utilities Commission. While the regulatory scheme created by the controlling enabling statute will largely define your discovery objectives, level of effort, and timetable, nevertheless the core discovery tools and concepts developed in the context of civil litigation will always supply the controlling language and analytical framework for your discovery work in the context of administrative proceedings.

29–5

§ 29.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 29.3.1 Ascertain the Specific Discovery Rules Applicable to the Cognizant Agency, Board, or Body In all civil litigation, to fashion a discovery plan, we start armed with knowledge of the applicable Rules of Civil Procedure and a relatively clear understanding of the applicable case management timetable. In civil litigation, the Rules of Civil Procedure can be referenced to clarify technical compliance issues, to develop important discovery requests, or to refine critical arguments when discovery disputes arise. Often in the context of administrative proceedings, we start with no such easy point of reference. Instead, we must start the discovery plan for an administrative proceeding by assuring full familiarity with agency’s controlling procedures. Unless you are familiar with the cognizant agency’s procedural practices, it is essential that you locate and review the enabling statute and all potentially applicable regulations. Virtually all Rhode Island agencies and boards have Web sites that provide links to (or downloads of) the key statutes, controlling regulations, and perhaps “rules of practice” regarding the conduct of contested hearings. Consider the following action item list when developing your discovery plan for a contested case before an administrative agency. Sequence your activities to fit your case, your style, your timetable, and your knowledge set: 1.

Find and review the enabling statute.

2.

Find and review the controlling agency regulations.

3.

Ascertain whether the agency or board has adopted rules of practice, any compilation of rules of procedure, and any handbooks or other summaries for reference by parties interested in the administrative proceedings. Review all such pertinent agency rules and agency resources.

4.

After obtaining a basic understanding of the discernable agency rules and procedures, review all notices and other communications received from the agency. Then speak with the designated contact person or arrange to speak with agency counsel. Explain your efforts to familiarize yourself with the agency’s procedures and ask for help and guidance with the following: a.

29–6

An overview of the agency’s key procedural rules.

DISCOVERY IN ALTERNATIVE FORUMS

5.

§ 29.3

b.

Identification of all pertinent agency publications governing or describing discovery, case management, and procedural rules.

c.

Identification of attorneys who regularly appear before the agency, so that you may confer with them in connection with your case preparations.

d.

An explanation of the agency’s collection of past agency rulings and court cases involving discovery issues to determine if such valuable resources are available for review.

e.

An explanation of the agency’s practices with respect to conducting what amounts to the functional equivalent to a Rule 16 case management conference and an overall explanation of the likely timetable for your case, including an estimated dates for the contested hearing and key prehearing procedural milestones (e.g., the target date for the close of prehearing discovery).

f.

An agreement to define the contents of, and deadline to provide you a copy of, the “agency file” regarding your contested case.

Identify and contact attorneys who regularly appear before the administrative agency and ask for: a.

Their overview of the agency’s key procedural rules and typical discovery practices. Determine in what circumstances, if ever, do they engage in discovery motion practice before that agency and what are the most typical discovery disputes encountered before that agency.

b.

Identification of what they deem to be the best available resources to become familiar with the agency’s applicable procedural rules.

c.

A set of discovery requests used by that attorney in a comparable contested case before that agency (and later perhaps a motion to compel or motion for protective order).

d.

Identification of the agency’s personnel most helpful in responding to inquiries from counsel.

e.

The likely timetable for your case.

In a civil case, you know the rules and start by outlining your discovery plan. In an administrative forum, you must be sure that you are outlining a discovery

29–7

§ 29.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

plan that will work effectively in the procedural context defined (and potentially limited) by the agency’s controlling procedural rules.

§ 29.3.2 Special Discovery Targets and Tools in Agency Proceedings: The “Agency File” and Use of the Access to Public Records Act While some administrative boards expressly adopt the Superior Court Rules of Civil Procedure to permit full prehearing discovery, some agency boards have no express provisions defining available discovery. For example, the Department of Labor and Training’s Labor Standards Division conducts contested cases regarding a variety of backpay disputes, but has never promulgated any procedural rules at all. Note that in Rhode Island Republican Party v. Daluz, 961 A.2d 287, 296 (R.I. 2008), the Rhode Island Supreme Court ruled that “there is no basis in law for the trial justice’s conclusion that the [state board of elections] was required to adopt procedural rules before it might exercise its statutory authority [to conduct investigations].” Therein the court noted: The General Assembly has imbued the board with investigatory authority “in all cases of every nature pending before it,” [R.I. Gen. Laws] § 17-7-8, and in doing so the board may summon witnesses to testify under oath, “in the same manner as witnesses are compelled to appear and testify in any court,” and may compel the production of documents. Id. Even a cursory reading of this grant of investigatory power leads to the conclusion that procedural rules are not a condition precedent to an investigation. R.I. Republican Party v. Daluz, 961 A.2d at 296. Whether or not the cognizant agency hearing board has promulgated detailed procedural rules defining available methods of discovery applicable to your case, consider starting your case preparation efforts by making a relatively simple request by letter to the agency to obtain the “agency file” concerning your client’s contested case. In connection with this initial document collection effort, consider two separate document collection techniques: 1.

29–8

As soon as possible in connection with your preparation of a contested administrative case, prepare a letter to cognizant agency counsel requesting a complete copy of the agency’s file regarding your case.

DISCOVERY IN ALTERNATIVE FORUMS

§ 29.3

Make your letter request specific, comprehensive, and inclusive, carefully tailored to the specific agency actions in issue in your case. As the agency complies with your request, prepare confirming correspondence to make a record detailing exactly what the agency has, and has not, produced. Press for full compliance as warranted with detailed followup correspondence. 2.

Often agency personnel will readily comply with a request for production of all pertinent agency records. Nevertheless, in each case, consider whether it makes sense to make your request a formal request for agency public records pursuant to the Access to Public Records Act (APRA), R.I. Gen. Laws § 38-2-1, et seq. If you have a good working relationship with agency personnel and the agency’s records are predictably limited, presenting your request as a formal APRA request may be unnecessary. If it seems that the agency may provide only a partial response or that the agency will unduly delay, then when you submit your request for agency records add the pertinent APRA language to make your request a formal APRA request.

In many cases it makes sense to go to the agency in person to review the file at the agency. Sometimes your inspection will amount to nothing more than an impersonal file inspection. However, in many cases, going to the agency in person to inspect the file can become an important opportunity to obtain information concerning the agency’s perspective regarding the most important matters in dispute. If you just ask the agency to mail you the file, then all you will get are the documents. If you go and inspect the agency’s records in person, then you may be able to engage in a discussion with agency counsel or agency personnel that will educate you regarding the agency’s view of the case, the documents it considers important, the agency’s enforcement priorities that may make your client’s case important to agency officials, etc. You may also be able to establish a cooperative working relationship with opposing counsel that may facilitate case management and, possibly, a mutually acceptable settlement of all or a portion of the case. In addition to being assured that you have taken all steps necessary to secure prompt access to the “agency file” concerning your client’s case, you must also consider the fact that the APRA allows you the statutory right to obtain many additional categories of public records from the agency. Per R.I. Gen. Laws § 38-2-2(4)(i)(P), the agency properly may resist producing “investigatory” records concerning your client or other similarly situated persons or businesses. Cf., Dep’t of Labor & Training v. R.I. Labor Relations Bd., C.A. No. 98-1467, 1999 R.I. Super. LEXIS 135 (Oct. 22, 1999) (wherein the Superior Court distinguished La Petite Auberge, Inc. v. Rhode Island Commission for Human Rights, 419 A.2d 274 (R.I. 1980), and held that while a party must be afforded reasonable 29–9

§ 29.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

use of subpoenas and perhaps other prehearing discovery opportunities against its adversary and other related parties, no such right of discovery is available directly against the board, panel, or other hearing officials charged with the responsibility of presiding over and deciding a contested administrative case). However, as part of your overall discovery plan, you must consider whether the APRA provides you a useful means of obtaining records that may or may not be readily available pursuant to the other discovery tools at your disposal. Using the APRA to supplement your discovery arsenal benefits your case by imposing upon the agency the APRA’s requirement that the agency provide a written response within ten business days. See R.I. Gen. Laws § 38-2-7. Upon good cause shown, the APRA allows the agency an additional twenty days to respond. R.I. Gen. Laws § 38-2-7. While you may be able to use the agency equivalent of a motion to compel to force the agency’s production of documents without resort to the APRA, affirmative use of the APRA establishes your client’s parallel right to enforce the agency’s obligation to produce public records by resort to the APRA’s complaint procedure with the Attorney General’s Office or in Superior Court. It must also be noted that the APRA imposes statutory costs that your client might not otherwise bear. See R.I. Gen. Laws § 38-2-4 ($0.15 per photocopy, $15.00 per search/retrieval hour, with no charge for the first hour and the actual reasonable cost for providing electronic records). A complete discussion of the APRA is beyond the scope of this chapter. For an overview of the attorney general’s enforcement of the APRA, review the helpful materials prepared by the Attorney General’s Office by accessing the Web page at http://www.riag.ri.gov/civilcriminal/opengovernment.php.

§ 29.3.3 Special Discovery Requests Peculiar to Administrative Agency Proceedings You must also consider your ability to obtain from the cognizant agency categories of documents that are not normally the subject of discovery requests in most civil actions. For example, many agencies are the sole repository of their past agency decisions. If potentially useful, make formal or informal inquiry regarding how the agency stores, organizes, and perhaps indexes its prior decisions in cases similar to your client’s case. Formal discovery requests or APRA requests may be invaluable in a particular case to obtain valuable information normally only in the agency’s possession and control. Similarly, consider whether it may be useful to request transcripts from prior hearings regarding the same or similar issues being disputed in your case. Such a 29–10

DISCOVERY IN ALTERNATIVE FORUMS

§ 29.3

transcript is a public record and it may provide you a great template for developing your proofs and preparing your witness outlines. Finally, consider what unique categories of records or compilations of information the cognizant agency may possess that may help you develop your case analysis and production of probative evidence. On a case-by-case basis, evaluate what information the agency may possess that may advance your client’s case.

§ 29.3.4 The Discovery Plan Must Fit the Available Prehearing Time Table Some administrative proceedings are highly streamlined. For example, unemployment contests are fast-tracked to comply with federal and state statutory obligations to make payments to eligible claimants in a very short time period to limit the financial burdens on unemployed workers and their families. Other administrative proceedings rely upon an extended prehearing period that will afford ample time to develop and complete a comprehensive, thorough discovery plan, complete with the full array of discovery motions to compel, motions for protective orders, etc. Preparing a detailed discovery plan will be a critical waste of time if the task at hand is getting ready to prove your client’s case to an unemployment referee. Your only chance to impact the record beyond your client’s own records or your client’s own cooperative witnesses will be via use of one or more subpoenas to secure helpful witnesses or records. You may only have a few days in which to prepare and serve necessary subpoenas. Obviously, you must always prepare for the case at hand according to the applicable case scheduling demands and procedural limitations.

§ 29.3.5 The Use of Subpoenas When Formal Discovery Mechanisms Are Unavailable As noted, many agency proceedings expressly allow the use of interrogatories, production requests, and even depositions to enable you to discover and secure the evidence needed to present your client’s case. When the agency’s procedural rules do not expressly permit these prehearing evidence-gathering mechanisms, you must be prepared to use subpoenas to secure the documents and testimony necessary to prepare and present your client’s case. Each agency will have its own preferences and practices regarding the issuance of subpoenas. Some such agency subpoena practices will be the subject of express rules or regulations; other such agency practices are not textually defined. 29–11

§ 29.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

The use of subpoenas for both discovery purposes and to compel attendance in connection with adversarial hearings arguably is made possible by R.I. Gen. Laws § 9-17-3, which allows any notary (most attorneys are notaries) to issue subpoenas to witnesses with respect to “any matter before any body or person authorized by law to summon witnesses.” If you have no other means of securing the necessary witness or documents, consider serving a subpoena pursuant to R.I. Gen. Laws § 9-17-3 and thereupon conduct a deposition, compel document production, or require attendance at a contested hearing, as warranted and if fair, reasonable, and permissible in light of controlling circumstances and agency regulations and practices. In La Petite Auberge, Inc. v. Rhode Island Commission for Human Rights, 419 A.2d 274, 282–83 (R.I. 1980), the Rhode Island Supreme Court made important observations regarding the importance and utility of an agency’s subpoena power. The opinion in La Petite Auberge expressly pertained not to the generic subpoena statute, R.I. Gen. Laws § 9-17-3, but rather to R.I. Gen. Laws § 28-513(G) (now codified as R.I. Gen. Laws §28-5-13(7)), which then provided that the Rhode Island Commission for Human Rights (RICHR) had the powers and duties, [in] connection with any investigation or hearing held pursuant to the provisions of this chapter, to . . . subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and, in connection therewith, to require the production for examination of any books and papers relating to any matter under investigation or in question before the commission. La Petite Auberge, Inc. v. R.I. Comm’n for Human Rights, 419 A.2d at 280. Based upon the subpoena power afforded to the RICHR, the Supreme Court ruled that “[t]he statutory authorization for the commission to issue subpoenas and subpoenas duces tecum is broad enough to authorize the taking of depositions.” La Petite Auberge, Inc. v. R.I. Comm’n for Human Rights, 419 A.2d at 283. The same discussion also instructed that a subpoena issued to a party by an administrative agency would be properly subject to a motion to quash “if the matters sought to be adduced are not relevant or the subpoena [is] not reasonable in scope.” La Petite Auberge, Inc. v. R.I. Comm’n for Human Rights, 419 A.2d at 282.

29–12

DISCOVERY IN ALTERNATIVE FORUMS

§ 29.4

§ 29.4

ADMINISTRATIVE DISCOVERY CASE LAW

The following Rhode Island Supreme Court and Superior Court decisions provide the statutory and analytical framework for asserting appellate challenges to disputed discovery rulings rendered in connection with contested cases adjudicated before administrative agencies. These cases demonstrate that litigants are frequently forced, first at the agency level, and then in a Superior Court appeal, to contest the availability and scope of subpoenas to secure the “discovery” necessary to develop the evidentiary record in contested administrative cases. When a party seeks judicial review of a challenged administrative discovery ruling, the APA provides the standard of review, as follows: (g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. R.I. Gen. Laws § 42-35-15(g). Frequently, the party seeking APA review of an administrative discovery ruling will allege that he or she was denied an opportunity for sufficient discovery. In La Petite Auberge, Inc. v. Rhode Island Commission for Human Rights, 419 A.2d 274 (R.I. 1980), the Rhode Island Supreme Court recognized the importance of prehearing discovery in the context of contested administrative cases. In that case, the RICHR (the Commission) refused the employer’s request for a 29–13

§ 29.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

subpoena to depose the employee regarding the alleged employment discrimination. The Supreme Court affirmed the Superior Court justice’s decision that ordered the Commission to allow the employer the right to depose the employee prior to the administrative hearing on the merits. As posited by the Supreme Court’s decision in La Petite Auberge, “Our inquiry therefore becomes this: to what extent does basic fairness require the commission to make its subpoena powers available to respondents between the times of the issuance of an unfair-practice complaint and the hearing?” La Petite Auberge, Inc. v. R.I. Comm’n for Human Rights, 419 A.2d at 280. In ruling that the subpoena should issue on behalf of the employer, the Supreme Court observed that opportunities to conduct discovery would appear consistent with goals of a smoothly conducted and efficient hearing. If a party must conduct his investigation of the facts by subpoenaing witnesses and documents at the hearing—the substitute for prehearing discovery which the commission recommends—then the hearing will tend towards both protracted and technical disputes, which could have been avoided by the resolution of production demands at an earlier stage. La Petite Auberge, Inc. v. R.I. Comm’n for Human Rights, 419 A.2d at 282 (emphasis in original). In Providence Auto Body, Inc. v. Department of Business Regulation, C.A. No. PC05-3580, 2005 R.I. Super. LEXIS 172 (Oct. 22, 2005), the Superior Court reviewed a challenge to a subpoena issued by the Department of Business Regulation (DBR). In accord with the APA’s standard of review, the target of the subpoena argued that DBR’s issuance of the subpoena was clearly erroneous because no substantial evidence existed to support DBR’s decision. The court rejected that argument given DBR’s broad subpoena power, and ruled that DBR’s discovery order was not a reversible clear error of law. In addition, the court ruled that when reviewing a challenged agency discovery ruling, Super. R. Civ. P. 26(b)(1) establishes whether a particular matter is a proper subject for discovery. The court emphasized that the discoverable information need not rise to the level of admissible evidence, but may be a proper subject for discovery so long as the requested information appears reasonably calculated to lead to the discovery of admissible evidence. In Southland v. Rhode Island Board of Governors for Higher Education, C.A. No. PC05-3580, 2006 R.I. Super. LEXIS 7 (Jan. 23, 2006), the Superior Court rejected the appellant’s claim that the Personnel Appeal Board violated the APA by refusing to issue a last-minute subpoena to URI President Robert Carothers 29–14

DISCOVERY IN ALTERNATIVE FORUMS

§ 29.4

near the conclusion of the scheduled contested hearings. Rejecting the appellant’s claimed due process violation, the court ruled that R.I. Gen. Laws § 42-3510 justified the subpoena denial on the particular facts of the case because it authorized the board to exclude “irrelevant, immaterial, or unduly repetitious evidence.” The court held that the board’s refusal to issue the subpoena was not clearly erroneous and denied that portion of the APA appeal. In Southern Union Co. v. R.I. Department of Environmental Management, C.A. No. PC07-3074 2007 R.I. Super. LEXIS 119 (Aug. 31, 2007), the target of the Department of Environmental Management’s enforcement action appealed the hearing officer’s discovery order that limited the duration of an ongoing deposition of a nonparty witness. As a sanction for abusive attorney conduct, the appealed discovery order also barred the offending attorney from asking further deposition questions, and specifically designated which of the appellant’s attorneys would be allowed to conclude the curtailed but ongoing deposition. As a threshold matter, the court ruled that R.I. Gen. Laws § 42-35-15 authorizes judicial review of interlocutory agency orders, such as the challenged discovery order, upon a showing by the appellant that delayed judicial review pending issuance of the agency’s final decision would not provide the appellant an adequate remedy. The court ruled that there was an APA appealable issue, but no APA violation. The court held that substantial, reliable evidence on the record clearly supported the hearing officer’s discovery decision and plainly established disruptive, boorish, and unprofessional attorney conduct that violated the standards for conducting depositions annunciated in Kelvey v. Coughlin, 625 A.2d 775 (R.I. 1993). In so ruling, the court held that Superior Court Rules 30(d)(2), 30(d)(3), and 26(c) established the hearing officer’s clear authority to limit and control discovery in the course of administrative proceedings. In Dick Cranston Ford Sales, Inc. v. Rhode Island Motor Vehicle Dealers’ License Commission (2007 R.I. Superior Court), the car dealer appellant mounted a series of appeals regarding successive discovery rulings rendered by defendant Rhode Island Motor Vehicle Dealers’ License Commission (the License Commission). To challenge the License Commission’s denial of a requested document subpoena, the plaintiff obtained a Superior Court temporary restraining order directing the License Commission to issue the plaintiff’s requested subpoena and restraining further administrative proceedings pending production of the subpoenaed information. When the agency hearings resumed after the court-ordered discovery was completed, several additional discovery dispute arose, resulting in several further unsuccessful appeals regarding challenged agency discovery rulings. Despite 29–15

§ 29.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

making several appeals, the appellant secured only the initial stay of agency proceedings. This case is important, in part, because it instructs that if a party is materially harmed by an agency discovery ruling, then it may become essential to secure a stay of all pending agency proceedings until the aggrieved party has secured judicial review of all discovery disputes warranting appellate review. By the time the court ruled on the agency’s final decision, the court refused to consider certain additional procedural objections because it deemed those issues to have become moot. The number of reported Rhode Island cases specifically addressing administrative discovery disputes is very limited. Accordingly, it may be important to research and cite as controlling authority case law developed in the parallel context of the Rules of Civil Procedure. Moreover, note that Rhode Island court decisions frequently rely upon federal case law to interpret a variety of Rhode Island statutes and the Rhode Island Superior Court Rules of Civil Procedure, because those statutes and rules have federal analogues, some of which are virtually identical. In this regard, depending on the particular issue and the statutory text supporting a particular contention, it may be eminently reasonable to cite federal decisions regarding the federal Administrative Procedures Act when seeking to construct a well-supported argument concerning the Rhode Island APA, because the structure and language of the two statutes are virtually identical. In the case of Champlin’s Realty Associates v. Tikoian, 989 A.2d 427 (R.I. 2010), the court addressed the quasi-judicial status of an administrative agency’s hearing officers and ruled that the mental processes of the decision makers could not be inquired into when challenging the ruling of the board. Notwithstanding the same, the court further ruled that ex parte communication among the decision makers, or off-the-record review of litigious facts by a board member, must be presented to the parties to allow a party the right to contest the evidence. The prohibition of ex parte contacts extends to discussions with agency staff members. Thus, “if the decision maker ‘intends to consult any documentary source or person concerning facts or opinions about the merits of an appeal,’ he or she must notify the parties so that they may “contest any such evidence” and “crossexamine any people consulted.” Champlin’s Realty Assocs. v. Tikoian, 989 A.2d at 441 (quoting Arnold v. Lebel, 941 A.2d 813, 821 (R.I. 2007)).

Great appreciation is due Attorneys Karen Fink, David Comerford, and Frank Saccoccio for their extremely valuable legal research and drafting assistance. Great appreciation is also due Attorney Mike McElroy for his creative ideas and constructive suggestions. 29–16

CHAPTER 30

Rhode Island Superior Court’s Business Calendar Jeffrey S. Brenner § 30.1

Overview ............................................................................. 30–1

§ 30.2

The History of the Business Calendar .............................. 30–1

§ 30.3

Only Specific Types of Cases May Be Assigned to the Business Calendar ................................................... 30–2

§ 30.4

Assigning a Case to the Business Calendar...................... 30–3

§ 30.5

The Business Calendar Oversees Receiverships in Providence County......................................................... 30–4 § 30.5.1

The Initiation of a Receivership .......................... 30–4

§ 30.5.2

The Guidelines for the Receiver’s Actions Are Established by the Superior Court................ 30–5

§ 30.6

Discovery on the Business Calendar................................. 30–5

§ 30.7

Seeking Injunctive Relief on the Business Calendar ....... 30–6

§ 30.8

§ 30.7.1

What Is an Injunction? ........................................ 30–6

§ 30.7.2

Where to Obtain an Injunction ............................ 30–6

§ 30.7.3

Standards for Preliminary Injunctive Relief........ 30–7

§ 30.7.4

Evidentiary Issues When Seeking an Injunction ....................................................... 30–7

Conclusion........................................................................... 30–7

30–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

30–ii

CHAPTER 30

Rhode Island Superior Court’s Business Calendar Jeffrey S. Brenner

Scope Note This practical chapter advises the reader on the Superior Court Business Calendar, including the assigning of cases and among other topics, discovery on the Business Calendar.

§ 30.1

OVERVIEW

One of the Rhode Island judicial system’s most distinct features is the Superior Court Business Calendar in Providence County (the Business Calendar). Since its inception in 2001, the Business Calendar has expeditiously handled over 1,000 complex commercial lawsuits, receiverships, and business disputes. Having one Superior Court justice assigned to the Business Calendar has created an efficient process for conferences, discovery, motions, and trials. In the usual Superior Court lawsuit, the same case could have a different judge for motions, injunctive relief, trial assignment, and trial. In contrast, there is a single justice for all matters on the Business Calendar, who handles the case from the beginning to end.

§ 30.2

THE HISTORY OF THE BUSINESS CALENDAR

On April 17, 2001, the presiding justice of the Rhode Island Superior Court issued Administrative Order Number 2001-9, which created the Business Calendar for Providence County to ensure that legal matters impacting jobs and the economy are handled quickly and efficiently. See 60 The Business Lawyer, at 188 (November 2004). There is no business calendar for Kent County, Washington County, or Newport County. Given that there is typically only one civil judge

30–1

§ 30.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

assigned to each of these counties, it would be logistically difficult to have a business calendar in these counties. According to the informational brochure distributed by the Rhode Island Superior Court in the courthouse and the Rhode Island judiciary’s Web site (http:// www.courts.ri.gov), the Business Calendar was initiated to track and resolve issues affecting jobs and businesses. The separate docket results in a faster resolution of cases through either alternative dispute resolution or streamlined court procedures. The objective is to improve the quality of decisions made in business litigation by enhancing the consistency, predictability, and accuracy of the application of business law principles to specific disputes. The goal of an efficient, specialized calendar is achieved by the uniformity of cases assigned to the Business Calendar, which are heard by justices who have an interest and expertise in business law issues and litigation. The Superior Court brochure and the judiciary’s Web site also state that the framework of the Business Calendar allows quick resolution of disputes and has been praised by Rhode Island companies for concentrating on their businesses, reducing litigation costs, and preserving an environment for creating and retaining jobs. On a public policy note, it appears that the business court sends a message to Rhode Island businesses that the state is interested in creating a climate that is attractive to prospective new and existing businesses by increasing the efficiency of the judicial process for business disputes.

§ 30.3

ONLY SPECIFIC TYPES OF CASES MAY BE ASSIGNED TO THE BUSINESS CALENDAR

Pursuant to the administrative order which created the Business Calendar, civil actions in which the principal claim or claims involve specific types of cases may be assigned to the Business Calendar for all purposes, including motion practice, discovery disputes, injunctive relief, and hearings on the merits, with or without a jury. These specific types of cases are the following: • breach of contract or fiduciary duties, fraud, misrepresentation, business tort, or statutory violations arising out of business dealings and/or transactions; • transactions governed by the provisions of the Uniform Commercial Code; • complicated transactions involving commercial real property; • shareholder derivative actions; 30–2

RHODE ISLAND SUPERIOR COURT’S BUSINESS CALENDAR

§ 30.3

• commercial class actions; • commercial bank transactions; • matters affecting the internal affairs or governance of business organizations or entities; and • business insolvencies and receiverships. Simple collection matters, declaratory judgment proceedings with respect to insurance coverage, confirmation or vacation of arbitration awards, and general landlord and tenant issues shall not be assigned to the Business Calendar.

§ 30.4

ASSIGNING A CASE TO THE BUSINESS CALENDAR

Pursuant to the administrative order which created the Business Calendar, new matters shall be assigned to the Business Calendar at the request of the plaintiff upon the filing of the complaint, or of the defendant, not later than ten days following the filing of defendant’s entry of appearance. The Superior Court justice designated to be in charge of the Business Calendar must assent to the proposed assignment to the Business Calendar. Therefore, the party desiring a case to be assigned to the Business Calendar must schedule a chambers conference with the justice in charge of the Business Calendar as soon as practicable. It is the intent of the Superior Court to process matters on the Business Calendar in as expeditious a manner as possible. Accordingly, the justice in charge of the Business Calendar is vested with the power to require mandatory submission of the dispute to nonbinding mediation. For example, the Business Calendar has referred disputes to mediators who may be lawyers or nonlawyers, such as accountants or retired business executives. See 60 The Business Lawyer, at 189 (November 2004). In the event of an absence of the justice in charge of the Business Calendar, any application or motions with respect to matters on the Business Calendar shall be addressed by the justice in charge of the Formal and Special Cause Calendar, which is heard daily in Providence County.

30–3

§ 30.5

§ 30.5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

THE BUSINESS CALENDAR OVERSEES RECEIVERSHIPS IN PROVIDENCE COUNTY

§ 30.5.1 The Initiation of a Receivership Pursuant to the administrative order which created the Business Calendar, all receivership proceedings are assigned to the Business Calendar. Shareholder disputes and creditor disputes typically trigger a receivership of a corporation in Rhode Island. See R.I. Gen. Laws § 7-1.2-1314. For example, a shareholder can request that the Superior Court appoint a receiver to liquidate the assets and business of a corporation in the following specific situations: • the directors or those other individuals that may be responsible for management pursuant to R.I. Gen. Laws § 7-1.2-1701(a) are deadlocked in the management of the corporate affairs and the shareholders are unable to break the deadlock; • the acts of the directors or those in control of the corporation are illegal, oppressive, or fraudulent; • the shareholders are deadlocked in voting power, and have failed, for a period that includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired or would have expired upon the election and qualification of their successors; • the corporate assets are being misapplied or are in danger of being wasted or lost; • two or more factions of shareholders are divided and there is such internal dissension that serious harm to the business and affairs of the corporation is threatened; or • the holders of one-half or more of all the outstanding shares of the corporation have voted to dissolve the corporation. When a shareholder petitions a corporation into receivership, Rhode Island law allows the nonpetitioning shareholder to elect to purchase the shares owned by the petitioner at a price equal to their fair value. If this option is exercised, the receivership proceeding is stayed and the court appoints an appraiser or a master to determine the value of the shares to be purchased. See R.I. Gen. Laws § 7-1.2-1315. 30–4

RHODE ISLAND SUPERIOR COURT’S BUSINESS CALENDAR

§ 30.5

Creditors can request that the Superior Court appoint a receiver to liquidate the assets and business of a corporation when it is established that the corporation is insolvent or when it is established that the corporate assets are being misapplied or are in danger of being wasted or lost. Insolvency is established when the claim of a creditor has been reduced to a judgment and an execution on the judgment has been returned unsatisfied or a corporation has admitted in writing that the claim of a creditor is due and owing.

§ 30.5.2 The Guidelines for the Receiver’s Actions Are Established by the Superior Court Under Rhode Island law, the Superior Court may appoint a receiver to liquidate the assets and business of a corporation under its general equity jurisdiction. See R.I. Gen. Laws § 7-1.2-1316. The receiver has the powers and duties at the Superior Court’s direction to take action as necessary to preserve the corporate assets wherever situated and carry on the business of the corporation. See Super. R. Civ P. 66. Additionally, the Rhode Island Superior Court looks to the U.S. Bankruptcy Code and to decisions by the federal courts for guidance in determining insolvency matters. Reynolds v. E & C Assocs., 693 A.2d 278, 281 (R.I. 1997); see also Leonard Levin Co. v. Star Jewelry Co., 175 A.651, 653 (R.I. 1934) (“The insolvency law of this State, at least in so far as it relates to the distribution of assets for the payment of certain debts, is superseded and suspended by the Bankruptcy Act.”).

§ 30.6

DISCOVERY ON THE BUSINESS CALENDAR

The discovery options typically available in Superior Court lawsuits, such as interrogatories, requests for production of documents, depositions, and requests to admit, are also available on the Business Calendar. Although the Rhode Island Superior Court Rules of Civil Procedure and the Rhode Island rules of evidence apply to cases on the Business Calendar, there are nuances which practitioners should understand before handling a matter on the Business Calendar. For example, the rules of evidence do not apply to proceedings involving applications for the appointment of a temporary receiver, motions for a preliminary injunction, or other forms of injunctive relief. See R.I. Rules of Evidence 101(b)(3). Given that many Business Calendar matters

30–5

§ 30.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

involve injunctive relief and petitions to appoint a receiver, practitioners should be aware of the inapplicability of the rules of evidence to these situations.

§ 30.7

SEEKING INJUNCTIVE RELIEF ON THE BUSINESS CALENDAR

§ 30.7.1 What Is an Injunction? Injunctive relief is an extraordinary remedy that is available only when there is no adequate remedy at law. Ward v. City of Pawtucket Police Dep’t, 639 A.2d 1379 (R.I. 1994). The main prerequisite to obtaining injunctive relief is a finding that the party seeking relief is being threatened by some irreparable injury for which he or she has no adequate legal remedy. Brown v. Amaral, 460 A.2d 7 (R.I. 1983). Rule 65 of the Rhode Island Superior Court Rules of Civil Procedure establishes the procedural requirements for injunctive relief that takes the form of a temporary restraining order, a preliminary injunction, and a permanent injunction.

§ 30.7.2 Where to Obtain an Injunction In general, it is the Rhode Island Superior Court that has exclusive, original jurisdiction over all lawsuits and proceedings seeking equitable relief. R.I. Gen. Laws § 8-2-13. Although other courts have the power to grant equitable relief, that power is limited—if only by the confines of their jurisdictional powers. For example, probate courts have concurrent jurisdiction to replace, remove, or fill any vacancy of any trustee under a trust established under a will, or to effect tax minimization or estate planning pursuant to R.I. Gen. Laws § 33-15-37.1. Similarly, the District Court has equitable jurisdiction in housing matters and may “grant such orders, including temporary restraining orders, and preliminary and permanent injunctions, as justice and equity may require” in such matters. R.I. Gen. Laws § 8-8-3.1. The Family Court also has equitable jurisdiction relating to antenuptial agreements and property settlement agreements, and other equitable matters arising out of a familial relationship. R.I. Gen. Laws § 8-10-3. However, in most civil disputes, jurisdiction rests in the Superior Court. This is especially true concerning commercial disputes on the Business Calendar. Therefore, most matters requiring injunctive or other equitable relief are filed in the Rhode Island Superior Court and, where appropriate, are assigned to the Business Calendar. If a lawsuit is filed in Superior Court in good faith to invoke the Superior Court’s equitable jurisdiction, the Superior Court has jurisdiction over all other causes of action arising out of the same transaction or occurrence. R.I. Gen. Laws § 8-2-13. 30–6

RHODE ISLAND SUPERIOR COURT’S BUSINESS CALENDAR

§ 30.7

§ 30.7.3 Standards for Preliminary Injunctive Relief In order to obtain a preliminary injunction pursuant to Rule 65 of the Superior Court Rules of Civil Procedure, the moving party must meet the following criteria: • there is a reasonable likelihood of success on the merits; • it will suffer irreparable harm without the requested injunctive relief; • the balance of equities, including the possible hardships to each party and to the public interest, tip in its favor; and • the issuance of a preliminary injunction will preserve the status quo. DiDonato v. Kennedy, 822 A.2d 179, 181 (R.I. 2003). In determining reasonable likelihood of success on the merits, a party moving for injunctive relief must present a prima facie case. DiDonato v. Kennedy, 822 A.2d at 181. When a preliminary injunction is mandatory in nature because it commands action from a party rather than preventing action, a stricter rule applies and such injunctions should be issued only upon a showing of a very clear right and great urgency. King v. Grand Chapter of R.I. Order of E. Star, 919 A.2d 991 (R.I. 2007).

§ 30.7.4 Evidentiary Issues When Seeking an Injunction Pursuant to Rule 101(b)(3) of the Rhode Island Rules of Evidence, the rules of evidence are not applicable at hearings in which a party seeks a temporary restraining order or a preliminary injunction. For example, testimony is routinely presented by affidavit or a verified complaint by plaintiffs seeking a temporary restraining order or a preliminary injunction. It is important to note, however, that courts do apply the rules of evidence during any final hearing on the merits of the case, i.e., the trial, when permanent injunctive or other permanent equitable relief is sought. See R.I. Rules of Evidence 101 advisory committee’s note.

§ 30.8

CONCLUSION

The Business Calendar was designed to efficiently handle business disputes. Overall, it has achieved this objective during the last eight years, primarily due

30–7

§ 30.8

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

to the efforts of Superior Court Associate Justice Michael A. Silverstein, who has presided over the Business Calendar since its creation. As a newly created calendar, the Business Calendar’s evolution remains a work in progress, and its procedures and functions are subject to further consideration so that it may continue to fulfill the objectives set forth in its enabling Administrative Order 2001-9.

30–8

CHAPTER 31

Discovery for Court-Annexed Arbitrations and Mediations Sonja L. Deyoe § 31.1

The Court-Annexed Arbitration Process in Rhode Island................................................................... 31–1 § 31.1.1

In All Personal Injury Cases Valued at Less Than $100,000, Court-Annexed Arbitration Is Mandatory..................................... 31–1

§ 31.1.2

R.I. Gen. Laws § 27-10.3-1 Authorizes Presuit Arbitration of Motor Vehicle Claims Valued at Less Than $25,000 Under Same General Rules as Court-Annexed Arbitration Process ...... 31–3

§ 31.2

Mediation ............................................................................ 31–3

§ 31.3

Discovery in Arbitration and Mediation Matters............ 31–4

31–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

31–ii

CHAPTER 31

Discovery for Court-Annexed Arbitrations and Mediations Sonja L. Deyoe

Scope Note In this chapter, the reader is advised as to discovery practices in the area of court-annexed arbitrations and mediations. Practical topics, such as “mediation week” in the court and the value of presuit arbitration, are addressed.

§ 31.1

THE COURT-ANNEXED ARBITRATION PROCESS IN RHODE ISLAND

§ 31.1.1 In All Personal Injury Cases Valued at Less Than $100,000, Court-Annexed Arbitration Is Mandatory When it enacted R.I. Gen. Laws § 8-6-5, the General Assembly granted the presiding justice of the Superior Court the power to promulgate rules and regulations governing compulsory and noncompulsory nonbinding arbitration and to determine which category or categories of civil actions filed in or appealed to the Superior Court would be subject to arbitration. Rule 1(a) of the Superior Court Arbitration Rules states: All civil actions filed in the Superior Court in which there is a claim or there are claims for monetary relief not exceeding $100,000 total, exclusive of interest, costs and attorneys fees, and district court appeals as determined from the arbitration certificate filed by counsel, are subject to court-annexed arbitration under these rules except actions: (1) Involving a class; (2) In which there is a substantial claim for injunctive 31–1

§ 31.1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

or declaratory relief; (3) Involving: (i) family law issues, (ii) title to real estate, (iii) wills and decedents’ estates, or (iv) landlord and tenant; (4) Which are cognizable on the formal and special cause calendar; (5) Involving a claim for monetary recovery in an unspecified amount later to be determined by an accounting or otherwise, if the claimant certifies in the pleading asserting the claim that the amount of the claim will actually exceed $100,000; or (6) Which are certified by a party to be companion or related to similar actions pending in other courts with which the action might be consolidated but for lack of jurisdiction or venue. Even if a claim exceeds $100,000 or is in a class excluded from mandatory court-annexed arbitration, the parties can agree to submit the claim to arbitration subject to court approval. See R.I. Super. Arbitration R. 1(b). The court may exempt or withdraw any action from arbitration on its own motion or on a motion of a party made not less than ten days before the arbitration hearing, upon a showing that • the amount of the claim or claims exceed $100,000, • the action is exempted from arbitration under Rule 1(a), or • there is good cause. See R.I. Super. Arbitration R. 1(d). It is the plaintiff’s responsibility to file an arbitration certificate of counsel setting forth the amount of the claim within three days of the last responsive pleading. In practice, however, the arbitration certificate is generally filed by counsel after he or she has agreed with opposing counsel that the matter is ripe for arbitration and an arbitrator has been selected. If counsel cannot agree on an arbitrator, the Arbitration Office will list five arbitrators and both parties will be allowed to strike two arbitrators. The name not stricken becomes the arbitrator by default.

31–2

COURT-ANNEXED ARBITRATIONS AND MEDIATIONS

§ 31.1

§ 31.1.2 R.I. Gen. Laws § 27-10.3-1 Authorizes Presuit Arbitration of Motor Vehicle Claims Valued at Less Than $25,000 Under Same General Rules as Court-Annexed Arbitration Process Arbitrations held pursuant to R.I. Gen. Laws § 27-10.3-1 proceed in the same fashion as if submitted to the court-annexed arbitration program, except that if suit was not filed prior to the arbitration, R.I. Gen. Laws § 27-10.3-1 provides that either party reserves his or her right to a jury trial by giving notice of this reservation of right to the other party or parties and to the arbitrators within sixty (60) days of the arbitrators award by certified mail return receipt requested; or . . . in the event that suit has been instituted, either party files a request for a jury trial with the court and with notice to the other party or parties within sixty (60) days of the arbitrator’s award. If the case proceeds to trial subsequent to arbitration, the decision of the arbitrators shall not be admissible. The arbitration proposed by R.I. Gen. Laws § 27-10.3-1 can be very useful in cases where a potential defendant carried the minimum $25,000 liability coverage. Many carriers will pay the awards, and since the awards are made through arbitration, they hold the force of a judgment if they are not rejected by the parties. This includes the assessment of interest and cost on any award that is not rejected. Even if the case does not resolve in presuit arbitration, the process itself reveals a lot about the case going forward to trial. For example, the arbitration process will highlight issues of medical causation and liability and potential defenses to the plaintiff’s claims.

§ 31.2

MEDIATION

The Rhode Island Superior Court Rules of Civil Procedure do not mandate mediation in any case. However, medical malpractice actions have been the subject of administrative orders promulgated by the Superior Court presiding justice. Thus far, all such administrative orders have included provisions for mandatory medication in medical malpractice actions. In addition, the parties are usually required to file a 31–3

§ 31.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

joint motion for a hearing or conference with the court within a limited amount of time after the case is filed so that they can set a scheduling order that will govern any discovery that has not yet been completed. If the parties can agree on an order, it will be placed on a calendar for formal approval by the court without the need for a conference. Practitioners who represent parties in medical malpractice actions should contact the office of the presiding justice of the Superior Court to obtain information about and a copy of any current administrative orders governing medical malpractice actions. In addition, in December of each year, the Superior Court offers a mediation week during which any case that has already been assigned to the continuous jury calendar may be mediated. In September of each year, forms are sent to attorneys that they can use to submit cases into mediation. Both sides must agree to mediation and sign the form prior to it being filed with the arbitration office, and submit a brief, one-page case summary that the arbitration office will provide to the mediator. Each of these mediations is scheduled for a half-hour period. To its credit, the arbitration office makes every attempt to schedule the mediations so that they are convenient to the attorneys involved. The mediators at these proceedings are fellow attorneys who are asked by the arbitration office to volunteer their time. There is no cost to either party for participation in this process. These mediations are successful about 70 percent of the time.

§ 31.3

DISCOVERY IN ARBITRATION AND MEDIATION MATTERS

In general, by the time a party is approaching mediation or arbitration, a good deal of discovery has been performed by the parties. The chapters addressing techniques for propounding interrogatories or taking depositions are better aimed at this process. It is important to bear in mind that, in general, relaxed evidentiary standards apply at arbitrations and mediations. See R.I. Super. Arbitration R. 3(h) (“The Rhode Island Court Rules of Evidence do not apply, except as to privilege, in an arbitration hearing but shall be considered as a guide toward full and fair development of the facts. The arbitrator shall consider all evidence presented and give it the weight and effect deemed appropriate.”). It is not uncommon for a courtannexed arbitration to be completed in less than an hour or a mediation to be completed in less than a day. In fact, Superior Court Arbitration Rule 3(n) states that the proceedings must be completed within four hours unless it is determined, upon application to the arbitrator, that fairness and justice require more time. In practice, it is helpful to remember that the arbitrator is compensated $300 for his or her services regardless of the time the arbitration takes. 31–4

COURT-ANNEXED ARBITRATIONS AND MEDIATIONS

§ 31.3

In mediation matters, the form of the disclosures made by the parties will vary. Generally, it is helpful to provide the mediator with the materials that are at issue in the mediation. For example, if it is an automobile accident, a mediation package would generally include an introductory letter, the typical photographs of the scene and vehicles, the police report, any depositions with summaries, discovery to date, medical records and bills, any statements from physician’s pertaining to causation or permanency, and property damages estimates. For the court-annexed arbitration process, Superior Court Arbitration Rule 3(b) mandates a prehearing exchange of information. This requires that the parties exchange and furnish to the arbitrator a list of testifying witnesses, copies of all documents or exhibits, and a brief statement of their case, at least ten days before the hearing. In practice, many arbitrators will agree to an extension of the ten-day deadline if agreed to by the parties involved. Leading up to the arbitration, parties are encouraged to enter into stipulations and are expressly allowed to present statements, sworn or unsworn, rather than a formal presentation of witnesses and documents, for all or part of the hearing. A useful feature of the court-annexed arbitration proceedings is the rule that “[a]ny document exchanged may be received in the hearing as evidence without further authentication.” R.I. Super. Arbitration R. 3(c). This allows counsel to use commercial services, such as StreetDelivery, to obtain photographs of an intersection or place of accident immediately upon the intake of a client, without concerns about the admissibility of that evidence at the arbitration. Similarly, it could allow for the admission of a statement provided to an attorney, signed by a witness, to be admissible. Also, if necessary, Superior Court Arbitration Rule 3(f) allows attorneys to issue subpoenas for attendance of witnesses and production of documentary evidence at an arbitration hearing under these rules. This can be particularly useful where lost wages are at issue or there is some question about whether a witness will voluntarily appear to provide testimony. In either proceeding, it can be very helpful to access the online registry of criminal information available at the State of Rhode Island Judiciary’s Web site, http:// courtconnect.courts.state.ri.us/pls/ri_adult/ck_public_qry_main.cp_main_idx. Once in this database, the criminal records of individuals can be printed for submission in either type of proceeding. This can be very helpful to impeach either the credibility of a party or witness, or an individual whose statement has been offered as a potential exhibit at the arbitration or mediation. Similarly, the Federal Correctional System offers a system that allows access to information about all federal offenders incarcerated since 1982.

31–5

§ 31.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Likewise, an attorney can request the driving records of any Rhode Island resident from the Rhode Island Division of Motor Vehicles registry for use in a civil proceeding or arbitration. This can be done by online verification of the license information generally provided on the police report or through a formal written request. See https://www.ri.gov/DMV/mvr/citizen/. A public computer is also available in the Superior Court clerk’s office, on which a party’s name can be checked to discover prior or pending litigation history. If this database check reveals information that you believe may be relevant to your case, be aware that all of the civil case files are archived in Pawtucket. The Rhode Island Workers’ Compensation Court also maintains a database. In that database, an attorney can run a check to determine what, if any, prior worker’s compensation claims an individual has made and request a copy of that file. The U.S. District Courts allow for a named party search in PACER to determine quickly and easily what litigation an individual has been involved with. Once in PACER, a party can access many of the documents filed in the case. Prior to going into either mediation or arbitration, it is always helpful to have an idea if there is a Medicare lien or other liens on the file, and to know what balances are outstanding to medical providers.

31–6

CHAPTER 32

Discovery in Medical Negligence Cases Joshua E. Carlin § 32.1

Introduction ........................................................................ 32–1

§ 32.2

Various Methods of Discovery in Medical Negligence .... 32–1 § 32.2.1

Interrogatories in Medical Malpractice Matters ................................................................ 32–3 (a)

§ 32.3

§ 32.4

Expert Disclosure....................................... 32–5

§ 32.2.2

Requests for Production of Documents............... 32–6

§ 32.2.3

Depositions.......................................................... 32–8 (a)

Compelling Testimony from Expert Fact Witnesses............................................ 32–8

(b)

Payment of Expert Fees ........................... 32–10

(c)

Materials Subject to Discovery at Expert Deposition................................. 32–12

Subpoenas ......................................................................... 32–14 § 32.3.1

In-State Witness Subpoenas .............................. 32–14

§ 32.3.2

In-State Records Subpoena ............................... 32–15

§ 32.3.3

Out-of-State Subpoenas .................................... 32–16

Nondispositive Motions and Sanctions........................... 32–17 § 32.4.1

Scheduling Orders/Scheduling Conferences ..... 32–20

§ 32.4.2

Learned Treatises .............................................. 32–21

EXHIBIT 32A—Sample Interrogatories in a Medical Malpractice Case, Issued by Defendant ....................................... 32–23 EXHIBIT 32B—Sample Document Request................................ 32–29 32–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

32–ii

CHAPTER 32

Discovery in Medical Negligence Cases Joshua E. Carlin

Scope Note This chapter acquaints the reader with the unique rules and specific case decisions that inform discovery in the context of medical malpractice. Interrogatories, requests for production, and subpoenas are discussed, as are the particular practices surrounding the deposition of medical experts. Featured is a section on Rhode Island’s medical malpractice calendar.

§ 32.1

INTRODUCTION

Discovery in medical malpractice cases essentially follows the same rules and structure as discovery in any negligence action, but there are some key cases and rules that are worth discussing here. The practitioner should review these cases before engaging in discovery in the medical malpractice arena. It is important to keep in mind that from time to time the Rhode Island Superior Court has issued administrative orders and adopted practices that require the order and timing of discovery and trial scheduling to be controlled by a single justice. This will be discussed in further detail in § 32.4.1, below. Legal practitioners should keep themselves appraised of the current practice in the Superior Court.

§ 32.2

VARIOUS METHODS OF DISCOVERY IN MEDICAL NEGLIGENCE

The six purposes of discovery set forth in A Practical Guide to Discovery in Rhode Island ch. 1 (MCLE, Inc. 2010) apply in medical negligence actions. These purposes include the following:

32–1

§ 32.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• to narrow the issues; • to obtain evidence; • to expose groundless or fraudulent claims (or in the case of malpractice actions, claims without proper expert basis); • to eliminate unfair surprise; • to further the use of summary judgment; and • to facilitate settlement. Usually, in the malpractice context, the most important use of discovery is to obtain evidence—mainly the evidence against a party. While the structure and rules that apply to all negligence cases apply to medical negligence cases, discovery and preparation for a medical negligence case—as in any other professional malpractice case—will include the element of expert discovery, something generally missing from many negligence cases. The reason for the inclusion of expert discovery in medical negligence cases is that for a plaintiff to establish a prima facia case of negligence in a medical negligence case, he or she must (except in the most unusual circumstances) prove negligence through the use of an expert witness. While this chapter addresses discovery, rather than trial, as a necessity the course of discovery the practitioner will engage in a medical malpractice case is dictated by the rules that will control his or her case at trial. Thus, Rule 702 of the Rhode Island Rules of Evidence, and more specifically R.I. Gen. Laws § 9-1941, provide the requisites for putting on a malpractice case. Section 9-19-41 reads, in pertinent part, as follows: In any legal action based upon a cause of action arising on or after January 1, 1987, for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentists, or dental hygienist based on professional negligence, only those persons who by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice.

32–2

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.2

As a result of this expert requirement, all aspects of medical malpractice discovery will incorporate expert discovery. In any standard set of interrogatories issued to a party, whether plaintiff or defendant, one or more interrogatories should address expert witnesses. Document requests may also seek documents relative to expert witnesses. And in Rhode Island, where depositions of experts are permitted as a matter of course by the Rhode Island Superior Court Rules of Civil Procedure, many lawyers handling a medical malpractice case will choose to depose the expert. Rule 26(b)(4)(A) of the Rhode Island Superior Court Rules of Civil Procedure states, in pertinent part: “A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party.” Finally, unlike some other causes of action that may arise in either District Court or Superior Court, it should be noted that no medical negligence cases are filed in state District Court. As such, all discussion in this chapter is limited to discovery conducted in Superior Court actions.

§ 32.2.1 Interrogatories in Medical Malpractice Matters As with all other negligence actions, interrogatories play an important role in malpractice cases. A Practical Guide to Discovery in Rhode Island ch. 10 (MCLE, Inc. 2010) provides a thorough analysis of the use of interrogatories from a procedural standpoint as well as a strategic standpoint. The purpose of discussing interrogatories in this chapter is to focus on their use in medical negligence cases. Interrogatories are issued in almost all medical negligence cases, often as the first tool of formal discovery. A defendant is permitted to issue interrogatories to the plaintiff at any point. The plaintiff must wait sixty days after service of the complaint to serve interrogatories upon the defendant. While parties are limited to thirty interrogatories apiece, a vehicle for issuing further interrogatories is a motion to the motion justice of the Superior Court requesting leave to file further interrogatories. The motion must establish good cause for requiring the excessive interrogatories. See Regine v. Stipich MD, 1995 WL 941507 (R.I. Super. Ct. Nov. 3, 1995) (and cases cited therein finding that upon good cause, a court may order a party to respond to more than thirty interrogatories). Further, one area that can create a bit of controversy is the use of subparts in interrogatories. Most sets of interrogatories in medical malpractice cases, as a matter of necessity, have interrogatories that contain subparts. Subparts have been used (or misused) to exceed the permitted thirty interrogatories without 32–3

§ 32.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

enumerating the interrogatories in such a way that makes it obvious that the issuing party has exceeded thirty. The Rhode Island Supreme Court has weighed in on this issue. In Eleazer v. Ted Reed Thermal, Inc., 576 A.2d 1217 (R.I. 1990), the court held that if a subpart is a new question, it should be counted as a separate interrogatory. This holding, when applied by the Superior Court, helps to curb abusive handling of subparts. Substantively, there are a number of questions in medical actions that should be addressed in interrogatories. These questions are different for the plaintiffs and defense. Typically, the defense will inquire as to the basis of a lawsuit as one of its interrogatories. The defense and plaintiff will issue one or more “expert interrogatories,” which will seek the information about an expert that is required to be disclosed under Rule 26. Specifically, the expert’s name, opinion, factual basis of opinion, and grounds for opinion must be disclosed, and the interrogatory will seek this information. Rule 26 subpart (4)(A) states as follows: A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion. A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party. Unless otherwise ordered by the court, the party seeking to depose the expert shall pay the expert the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition. In the absence of agreement between the parties as to the timing of disclosures required under this subdivision, any party may apply to the court for an order establishing a schedule of such interrogatories, responses, and depositions. Obligation to respond to interrogatories shall be stayed until the ruling on the application. Super. R. Civ. P. 26(b)(4)(A). The plaintiff will also typically seek to discover insurance information regarding the defendant. The plaintiff should seek, at a minimum, the policy number, the limits of liability, and whether more than one policy of insurance may offer coverage for the events claimed. Plaintiff interrogatories to hospital defendants will 32–4

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.2

vary from interrogatories issued to individual health care provider defendants. Interrogatories issued to hospitals will often seek information regarding the policies and procedures at the hospital that are relevant to the claim at issue. With the 2006 changes to the Rhode Island Superior Court Rules of Civil Procedure, parties are no longer expected to file interrogatories or answers to interrogatories with the court.

(a)

Expert Disclosure

In answering an interrogatory seeking information on a party’s potential testifying experts, the party in a medical malpractice case is providing “expert disclosure.” The timing for providing this disclosure, which is discussed in § 32.4.1, below, is often governed by a scheduling order that has been entered by the court, either after a contested hearing or an agreement between the parties. Each case is unique, and the travel of discovery can also vary from case to case. Thus, in some medical cases, disclosure of expert witnesses is made very early on and in the absence of a scheduling order. In other matters, prior to the Superior Court’s medical malpractice scheduling calendar, expert disclosure was obtained only after a party moved to compel the disclosure through a motion to compel a more responsive answer to the expert interrogatory (the existing answer typically stated that the time for disclosure of experts had not yet arrived). In providing expert disclosure, it is important to be sufficiently detailed and to set forth all facts upon which an expert bases his or her opinions, as well as all the opinions that will be offered at trial. Withholding such information in disclosure is done at a party’s peril. While the opposing party has a right to depose the adversary’s experts, the party may choose not to exercise that right. Thus, the only notice of the expert’s opinions will be contained in the interrogatory answer. If the answer is not detailed enough, opposing counsel will have the opportunity to preclude expert testimony at trial on the grounds that it will exceed the disclosed opinion. See generally Blue Coast, Inc. v. Suarez Corp. Indus., 870 A.2d 997 (R.I. 2005) (finding trial court has discretion to exclude expert testimony that was not properly disclosed in interrogatories). However, there is a risk for the recipient of the disclosure to wait until trial to argue that the disclosure is insufficient, as the decision as to allow the opinion testimony to come in or be stricken is a discretionary decision. Thus, other options available to counsel who believes disclosure to be insufficient are requesting a more detailed disclosure, moving to compel the more detailed disclosure if the request is unmet, or taking the deposition of the expert to discover the details from the expert. These options can be a more expensive way for a party to obtain what it is entitled to— complete expert disclosure—as expert witnesses often charge thousands of dollars

32–5

§ 32.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

for a deposition, not to mention the costs that a party or its insurer must incur in having counsel travel to often distant locales to conduct the deposition. See Exhibit 32A for a sample set of defense interrogatories and Exhibit 32B for a sample defendant’s document request.

§ 32.2.2 Requests for Production of Documents Rule 34 of the Rhode Island Superior Court Rules of Civil Procedure allows any party to request the production of documents, the inspection of documents or things, or entry upon land (custody, control language). Although the entry upon land clause of the Rule is of little value in medical malpractice cases, Rule 34 is most likely utilized, in some fashion, in most medical malpractice cases. In medical malpractice cases, the most crucial piece of documentary evidence is most often the medical record itself. For this reason, it is often the subject of a Rule 34 request. Because of the requirements under Rule 11, it is expected that the plaintiff or his or her counsel will have the pertinent medical record prior to filing suit. That said, it should be requested during discovery, through a Rule 34 request, to provide a level of security that the plaintiff does have the complete set of records. Other documentary items to consider seeking, if the practitioner is representing the plaintiff, are the following: • copies of written policies that have been identified by the defendant in answering interrogatories, • copies of the applicable insurance policy or policies that provide coverage in the case (Rule 26(b)(2) permits the request to demand the entire policy), • the curriculum vitae of the doctor or other health care provider defendant, • the curriculum vitae of the expert witnesses who the defendant will ultimately identify, and • copies of any learned treatises that the defendant will ultimately attempt to use in the defense of his or her case at trial. Rule 34 is also used by the plaintiff to gain the opportunity to inspect the original medical record. This helps plaintiff’s counsel ensure that the record previously produced, in discovery or prior to suit, is identical to the original record. 32–6

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.2

With the older paper-based medical records, often contained in a folder, the potential that loose slips of paper will be missed during copying increases as the size of the chart increases. Also, copying can cut off writing in the various margins of a page. Inspection of the original record allows the plaintiff to then shore up the record in his or her possession and to get better copies of poorly copied pages, and benefits both parties because it avoids issues at trial that will arise if the parties have inconsistent sets of medical records. Plaintiffs will also utilize Rule 34 to request inspection of things. Most often, this is done in the context of a surgery case. The plaintiff may want to inspect the surgical instrument if there is a question regarding the quality or functioning of the specific device used in the surgery at issue. Such a request is permitted and under the rules must be complied with in forty days. However, in the usual circumstance of such a request, counsel will agree to a specific date, time, and place to conduct the inspection that is suitable to all parties. The defendant will often seek all medical records that reflect treatment required by the injury at issue; all medical records from a certain time period prior to the injury (often ten years) through the time of the document request; written statements; diaries that may address the issues in suit; and, like the plaintiff, learned treatises and the curriculum vitae of experts. Unlike Rule 33, which controls interrogatories, Rule 34 sets no limitations on when a plaintiff can serve requests for document production. Thus, a plaintiff can issue requests for production with the summons and complaint. This means that the plaintiff can receive discovery responses first. Whether this provides any strategic advantage is another question. As a practical matter for the defense attorney, one must ask the client whether a request for documents was served with the summons and complaint. A nonattorney will often not recognize the document and neglect to mention it unless prodded. One other difference between Rule 33 and Rule 34 is that Rule 34 contains no written limitation on the amount of requests that can be issued. While all thirty, or close to all thirty, of the interrogatories permitted are issued in the first set, document requests are made throughout the course of a medical malpractice lawsuit. Usually, a supplemental set of document requests will be made after the existence or potential existence of a document has been revealed in litigation. Often, this will come during the course of a deposition or through answering interrogatories. Each subsequent document request should be entitled in a manner that allows the recipient to know how many have come before (for example, “Defendant’s Third Supplemental Request for the Production of Documents”). Following this chapter are two exhibits that provide sample document production requests issued by a defendant in a medical malpractice case. 32–7

§ 32.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

§ 32.2.3 Depositions Several chapters in A Practical Guide to Discovery in Rhode Island (MCLE, Inc. 2010), address depositions. Chapter 13 is a broad overview of depositions in general and Chapter 14 specifically addresses the depositions of expert witnesses. For that reason, this chapter’s treatment of depositions as part of the discovery process in medical malpractice cases is of a summary nature and attempts to avoid duplicity. It focuses solely on issues unique to medical malpractice.

(a)

Compelling Testimony from Expert Fact Witnesses

Plaintiffs in any medical malpractice action will want to conduct the deposition of the defendant doctor. Although there is no requirement as to when this must be done, the court may enter a scheduling that requires the defendant doctor to provide a number of alternative dates upon which he or she will be available for deposition. As with any personal injury claim, either side often will wish to conduct the deposition of the plaintiff’s nonparty treating physicians. For the defense, in order to speak with a treating physician at all, the doctor’s deposition must be conducted. Section § 5-37.3-4(b)(8)(i) of the Rhode Island General Laws specifically prohibits defense counsel in medical malpractice actions from ex parte contact with a plaintiff’s treating physician. Such a conversation would constitute a violation of the law protecting the confidentiality of the plaintiff’s health care information. Conversely, the plaintiff’s counsel may speak to the nonparty, treating physicians if those physicians consent to such conversations, as the right to confidentiality is held by the plaintiff. It is important to remember that if the scope of the deposition of a nonparty, treating physician goes beyond the facts and circumstances surrounding the physician’s treatment of the plaintiff patient, that physician may refuse to provide any professional opinions. While the physician can be subpoenaed to give deposition testimony relative to the care provided to a plaintiff in a lawsuit and must testify about the expert opinions he or she held at the time and in connection with treating the plaintiff patient, the physician cannot be compelled to formulate new or additional opinions beyond those previously formulated in connection with the plaintiff patient’s care. This rule was first set forth in a real estate matter, not a medical negligence case, but the holding is nonetheless applicable. In L’Etoile v. Director of Public Works, 89 R.I. 394 (1959), the Rhode Island Supreme Court held that a real estate expert who had previously appraised the property at issue and was not engaged as an expert by the proponent of his testimony could not be forced to testify about his opinions against his wishes.

32–8

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.2

The L’Etoile analysis was applied to physicians in Ondis v. Pion, a 1985 decision of the Rhode Island Supreme Court. Ondis v. Pion, 497 A.2d 13 (R.I. 1985). Ondis was a personal injury case involving a bicyclist who was injured when she was involved in an automobile accident with a police officer for the Town of Lincoln. The plaintiff subpoenaed a plastic surgeon who had treated her subsequent to the accident but who had never formulated an opinion concerning her future prognosis. The doctor did testify factually regarding the extent of the plaintiff’s injuries that he observed and treated, but declined to voluntarily offer opinions regarding the plaintiff’s future prognosis. The trial justice refused to require the surgeon to provide such opinions. The Supreme Court upheld the decision, holding that witnesses “who had not been engaged but merely subpoenaed could not be compelled to give opinion testimony against [their] will.” The court went on to set forth the underlying basis for this concept, which is economic: It is the obligation of a party who desires expert testimony to obtain the services of a qualified person on a voluntary basis. We believe that compelling expert testimony would in essence involve a form of involuntary servitude that normally should not be inflicted upon a person merely because of his professional expertise. Ondis v. Pion, 497 A.2d at 18. This concept was further upheld two years later in the case of Sousa v. Chaset, 519 A.2d 1132 (R.I. 1987), and remains the law today. Similarly, a defendant physician also may be compelled to provide testimony concerning his or her knowledge of the facts, including his or her understanding of the practice of competent and responsible medical practitioners in the particular medical situation in which the plaintiff found himself or herself, i.e., the standard of care. Menard v. Blazar, 669 A.2d 1160 (R.I. 1996) (defendant doctor was ordered to answer a question posed to him at deposition concerning the standard of care applicable to his treatment of the plaintiff). Likewise, a defendant physician can be compelled to testify about any observations he or she made concerning a codefendant’s conduct and whether it conformed to the standard of care at the time. See Wilkinson v. Vesey, 110 R.I. at 614 (testimony that related to standard of care to be used by physicians in diagnosing patient’s ailment and that was given by defendant-physicians who had been called as adverse witnesses could be regarded as expert medical testimony insofar as it described practice of competent and responsible medical practitioners in particular medical situation in which plaintiff found herself.) Still open, however, is the question of whether a defendant doctor can be compelled to formulate a present-day opinion regarding whether a codefendant met 32–9

§ 32.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

or breached the applicable standard of care. While the Supreme Court has not had an opportunity to directly address this narrow issue, it would appear based on a close reading of Wilkinson v. Vesey that the Ondis and Sousa holdings would apply. A Practical Guide to Discovery in Rhode Island ch. 14 (MCLE, Inc. 2010) addresses the handling of expert depositions in detail. In medical malpractice cases in Rhode Island, expert opinions will be provided almost exclusively through answering an expert interrogatory (see § 32.2.1, above). Here, in contrast to the federal rules, the disclosure of the expert is signed by the party, whether plaintiff or defendant, not by the expert witness. This disclosure will be the outline for the adversary’s deposition examination of the expert; thus, it is important that the expert has input on the prepared disclosure and approves of the exact language in the disclosure prior to it being provided to the opposing party. Under Super. R. Civ. P. 26(b)(4)(A)–(C), depositions of experts are permitted as a matter of course. Some counsel choose to conduct expert depositions, while others, for strategic and practical reasons, choose not to. Neither is the better practice—this decision is based on a number of factors, including the client’s choice, the attorney’s choice and style, the issues in the case, the costs associated with the expert deposition, and the adequacy of the expert disclosure provided.

(b)

Payment of Expert Fees

Rule 26 requires payment of reasonable fees to the adversary’s expert if a deposition is to be conducted. The Rhode Island Supreme Court has not addressed the issue of what constitutes reasonable fees. As a practical matter, prior to scheduling the deposition of the opposing expert, counsel should inquire as to the expert’s fees. Learning for the first time at deposition that an expert witness charges far more than a party or his or her counsel believes to be reasonable may turn out to be too late. While the Rhode Island Supreme Court has not addressed the expert witness fee issue, several courts outside this jurisdiction have. Other jurisdictions have looked at varying criteria in granting awards of expert witness fees, but generally allow for fees within the discretion of the trial judge. See, e.g., Davis v. Sweeney, 2010 WL 715486, 44,997 (La. App. 2d Cir. 2010) (ruling the award of expert witness fees within the discretion of the trial judge); Alvarado v. Dillon, 67 A.D.3d 1214 (N.Y.A.D. 2009) (finding that the award of expert witness fees requires a showing of extraordinary circumstances); State ex rel. Dep’t of Transp. v. Moore, 217 P.3d 165 (Okla. Civ. App. Div. 1 2009) (awarding expert witness fees where permitted by statute).

32–10

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.2

It appears that the main criteria considered in other jurisdictions in determining the reasonableness of an expert’s fees are the following: • the witness’s area of expertise; • the education and training required to provide the expert insight that is sought; • the prevailing rates of other comparably respected available experts; • the nature, quality, and complexity of the discovery responses provided; • the fee actually charged to the party who retained the expert; • fees traditionally charged by the expert on related matters; and • any other factor likely to assist the court in balancing the interest implicated by Rule 26. If a party believes fees are unreasonable and cannot come to an agreement with opposing counsel on a fee schedule, the party may move to seek court intervention to determine reasonableness. However, it is incumbent upon the moving party—the party challenging the fees—to establish that the fees are unreasonable. This is not an easy task and may necessitate providing an affidavit or some other measure of proof that the fee far exceeds what most doctors in the same field, geographic area, etc., charge for deposition. Expert witnesses charge either hourly or demand a flat fee for deposition. Some justices of the Superior Court find flat fees, in and of themselves, to be unreasonable, while others do not. The case law outside the Rhode Island jurisdiction is variable on this question. See, e.g., Levesque v. Bristol Hosp., 943 A.2d 430 (Conn. 2008) (finding $1,800 fee for time spent preparing for deposition was reasonable); Dimm v. Zeringue, 703 So.2d 1280 (La. 1997) (finding $2,000 flat fee for two- or three-hour deposition unreasonable); Mountain States Tel. & Tel. Co. v. Pub. Utils. Comm’n, 576 P.2d 544 (Colo. 1978) (stating that a flat fee for an expert is not per se a reasonable fee). Experts’ usual justification for demanding a flat fee is that they have had to clear their patient or other business schedule for the day or a significant portion of the day to sit for deposition. Should the deposition take less time than cleared, the doctor will not then be able to make up the time by having patients come into the office. The argument against a flat fee is that it can create a windfall for the expert. Depending on the fee and the amount of time spent at deposition, it could break down to a fee in excess of $1,000 per hour. One other open question on expert fees is whether Rule 26’s requirement that the party seeking the discovery pay for it extends to requiring the party to pay for 32–11

§ 32.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

the expert to prepare for deposition. While again, the Rhode Island Supreme Court has not addressed this issue, recent amendments to the Rhode Island Superior Court Rules of Civil Procedure have. In 2006, Rule 26(b)(4) was amended to read that “Unless ordered by the court, the party seeking to depose the expert shall pay the expert the reasonable expenses incurred in attending the deposition.” This language modified the previous language of Rule 26(b), which read “Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subsection” (1995 version of Super. R. Civ. P. 26(b)(4)(C)). The amendment appears to address the issue of whether a party must pay the opposing expert for preparation for deposition, since the language about paying for time spent in responding has been replaced with “attending the deposition.” That said, the amendment contains the caveat “Unless ordered by the court,” thus it would appear that a party is still free to apply to the court for a ruling obliging the other side to pay for its expert’s deposition preparation time. On the issue of payment for preparation, the federal courts appear to be split. See Fiber Optic Designs, Inc. v. New Eng. Pottery, LLC, 262 F.R.D. 586 (D. Colo. 2009) (and cases cited therein discussing different approaches employed by the federal courts). However, the language of the federal rule (regarding fees) is identical to the 1995 amendment. See Fed. R. Civ. P. 26(b)(4)(C)(i). It is unlikely that the Rhode Island Supreme Court will rule on expert fee questions any time in the near future. Questions of expert fees coming before the motion court are not that common. Moreover, rulings on the questions are discretionary and interlocutory. For now, looking to well-reasoned Superior Court holdings and out-of-jurisdiction case law for guidance will need to suffice in arguing questions regarding reasonableness of fees, while citing to the amendment and new language of Rule 26(b) should be persuasive in arguing on payment of preparation time.

(c)

Materials Subject to Discovery at Expert Deposition

Most deposition notices for expert witnesses contain a schedule listing various materials that the expert must bring to deposition. A Practical Guide to Discovery in Rhode Island ch. 14 (MCLE, Inc. 2010), which deals with conducting expert witness depositions, gives a nice analysis of the Crowe v. Countryside case, which is currently the definitive law on what material an expert must produce and what material is privileged because it is attorney work product. Thus, this chapter will not analyze that case in depth. However, as a practical matter, counsel should attempt, when at all possible, to address the issue of what material will be considered privileged and nondiscoverable prior to the expert deposition. The opposing counsel should know, since the material counsel will be entitled to 32–12

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.2

assert is privileged will be among the material counsel sent to the expert. Thus, if the lawyer who is going to take the deposition can see a log of items that the opposing counsel is asserting is privileged, he or she can decide whether to accept the assertions of privilege or contest them, under the guidance of Crowe v. Countryside, in front of the motion judge. There are several advantages to doing this prior to a deposition. Rather than discovering for the first time at the expert’s deposition that material that is perhaps critical to your examination is being withheld, you will have advance notice and may obtain a determination from the court that the material is nonprivileged. Further, addressing the issue prior to the deposition may save two (potentially costly) deposition trips for an out-ofstate expert. One can anticipate a situation where the party conducting the deposition moves to compel production of material in the expert’s file that the opposing counsel has withheld after the deposition has been suspended. If the court rules in the moving party’s favor and the material is turned over, further inquiry of the expert will likely be required on the material. This could involve a second trip for the continuation of an expert deposition that could have been avoided by addressing the issue prior to deposition. The familiar definition in Rule 26(b)(1) of the permissible scope of discovery applies to depositions: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Thus, as long as the questioning at a deposition “appears reasonably calculated to lead to the discovery of admissible evidence,” the questioning is proper. Rhode Island procedural rules place no express numerical limit on the number of depositions that may be taken in any one case. Under Rule 26(b)(1), the number of depositions taken by a party in any given case may be limited by the court if the court determines that the proposed depositions are cumulative or duplicative, or that the party conducting them is causing undue burden or expense. If you believe your opponent is conducting cumulative or burdensome depositions, you 32–13

§ 32.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

should attempt to resolve the issue with opposing counsel and, if that is not successful, file a motion for protective order under Rule 26(c).

§ 32.3

SUBPOENAS

As with any type of litigation, conducting discovery in medical malpractice cases will often require the lawyer to issue deposition subpoenas. This section covers two types of subpoenas: witness subpoenas for deposition and records subpoenas. It also covers the procedure for issuance of out-of-state subpoenas.

§ 32.3.1 In-State Witness Subpoenas In order to compel a nonparty to give testimony or produce documents at deposition, an attorney must subpoena the nonparty witness in addition to giving notice of the deposition to all parties/counsel of record. See Carroccio v. DeRobbio, 274 A.2d 424, 426 (R.I. 1971). That is not to say that the attorney cannot request that the nonparty come to a deposition voluntarily. However, only a subpoena will carry with it the force of law and only a witness who has been subpoenaed can be held in contempt for failure to appear at a deposition. That said, the lawyer must use his or her judgment in deciding whether to secure a witness through a subpoena or to request that the witness appear voluntarily. Rule 45 of the Rhode Island Superior Court Rules of Civil Procedure controls the issuance of subpoenas. Subpoenas can be issued by the court, a notary public, or the attorney, as an officer of the court. As a practical matter, they are almost exclusively issued by the attorney or a notary public (whether an attorney or not) in the attorney’s office. See Super. R. Civ. P. 45(a)(1)(A). Since penalties can attach to a witness who fails to appear as directed by the subpoena, due process demands that the witness is advised of rights and responsibilities that attach to responding to a subpoena. Thus, Rule 45 requires that the subpoena itself contain the text of subdivisions (c) and (d) of Rule 45. See Super. R. Civ. P. 45(a)(1)(E). Rule 45(c) sets out the protections of persons subject to a subpoena, while Rule 45(d) sets forth the duties in responding to a subpoena. Interestingly, while Rule 45(e) states that a witness may be deemed in contempt of court for failing to obey a subpoena, Rule 45 does not require that the text of subsection (e) be provided to a witness. The Rule does not preclude the issuing officer from providing the recipient of the subpoena with the text of subsection (e) or some other form of notice regarding the potential for a contempt finding, and the better practice is to provide the witness with notice that contempt can attach when a subpoena is disobeyed.

32–14

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.3

§ 32.3.2 In-State Records Subpoena While Rule 34 document requests are certainly a vehicle for obtaining various records and documents, many medical malpractice lawyers will also opt to use Rule 45 records subpoenas to obtain records from third parties. For instance, medical records of a plaintiff can be sought by a defendant through a Rule 34 document request. They can also be sought directly from the medical provider through a records subpoena. Plaintiffs, who have the ability to request records directly, since a patient is entitled to his or her own records, may still occasionally issue subpoenas for their own records. If a plaintiff is willing to authorize it in writing, a defendant can also directly seek a plaintiff’s medical records from the plaintiff’s providers if the defendant’s counsel provides the authorization to the provider. This can be an efficient method for obtaining records, but involves a plaintiff agreeing to provide the authorization. There can be occasions where a plaintiff will not agree to provide an authorization. One reason for plaintiffs to issue subpoenas for their own records may be financial. State regulations allow physician offices and hospitals to charge between 15 cents and 25 cents a page for records provided in response to requests, plus $15 for compiling the records. The regulations are less clear as to whether charges can be imposed when records are sought through a subpoena (other than the witness fees that are required under Rule 45). Procedurally, the method for issuing a records subpoena is no different than the method for issuing a witness subpoena. The subpoena is directed to the keeper of records for an organization or office. The subpoena will set down a specific date, time, and location for the recipient to appear, and then provide a schedule of documents that should be produced at the deposition. A deposition notice will accompany the subpoena. Additionally, a letter will usually accompany the subpoena and deposition notice, directed to the keeper of records, informing the recordkeeper that if the records are produced, in a sealed fashion, prior to the deposition date, the witness need not appear at the deposition. Some attorneys will cancel the deposition upon receipt of the records, but the better practice is to keep the deposition scheduled and put the unsealing of the documents on the record so there can be no dispute that counsel did not violate Rhode Island’s Confidentiality of Health Care Communications and Information Act and that the plaintiff or other individual whose records have been subpoenaed had an opportunity to object to the disclosure of the records but did not. In most circumstances, the subpoena will be issued by the defendant and the records will be those of the plaintiff. On very rare occasions, the records will be of a nonparty. If the records sought in a records subpoena are medical records of another person, in order to avoid violating confidentiality law, the issuing officer

32–15

§ 32.3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

must provide a letter or some other form of written notice to opposing counsel advising counsel of the subpoena, the fact that medical records are being sought, and the fact that there is a legal right to challenge the subpoena. Furthermore, a certification should be provided to the recipient of the subpoena that lets the recipient know that opposing counsel has been informed of the subpoena and the right to challenge the subpoena. Twenty days’ notice is required under such circumstances. R.I. Gen. Laws § 5-37.3-6.1. On those rare occasions when a subpoena is issued for the records of a nonparty, the nonparty also must be provided with notice and the same opportunity to object to the subpoena. In these situations, in particular, the best practice is to convene the deposition and put the unsealing of the records as well as the notice to the nonparty on the record.

§ 32.3.3 Out-of-State Subpoenas Causing subpoenas to be issued to a witness, whether a witness who will appear to testify or a keeper of records, when the witness is out of Rhode Island is much more involved than issuing subpoenas within the state. It is also more costly. The mechanism for causing an out-of-state witness to be served with a subpoena depends on the state in which the witness resides. However, no matter where a witness resides, so long as it is not in Rhode Island, a Rhode Island subpoena simply will not have any power. Thus, in order to properly serve a witness, the witness or recordkeeper must be issued a subpoena from the court or authority in the state in which the witness or recordkeeper resides. Many states require that the party seeking the issuance of a subpoena provide that state’s court with a letter rogatory or commission from the court with jurisdiction over the underlying proceeding. A letter rogatory is simply a letter issued by one court to another, requesting as a matter of comity that the receiving court issue a subpoena. Applying for and obtaining a letter rogatory in Rhode Island is governed by Super. R. Civ. P. 28(b). A letter rogatory or commission should be sought during a regularly scheduled call of the nondispositive motion calendar. Once the attorney has the letter rogatory or commission in hand, the next step is to apply for the subpoena in the out-of-state jurisdiction. The exact procedure will vary from state to state, but the application will require an attorney licensed in that state to make the application. The procedure can become a bit expensive. Usually, a civil action will need to be filed under which the petition for issuance of a subpoena will be made. Obviously, filing fees accompany the opening of a civil action. Because of its proximity, it is not infrequent in medical malpractice cases that the plaintiff has received some of his or her health care in Massachusetts. Filing fees in Massachusetts are $275. The procedure varies from county to county as 32–16

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.3

to whether a judge will grant a petition that is filed in the mail or whether the attorney has to appear in person for the order granting the issuance of a subpoena to be entered. For instance, Bristol County (which is closest to Rhode Island and contains hospitals frequently visited by Rhode Islanders, such as Sturdy, St. Luke’s, St. Anne’s, and Charlton) will accept and enter papers by mail, while Suffolk County, the county in which Boston sits, requires in-person applications. Many law offices in Rhode Island have lawyers licensed in Massachusetts, and can use those lawyers to handle the proceedings in Massachusetts, but the location of the scheduled deposition, whether a witness is to appear or whether the deposition is simply a recordkeeper deposition, must be within Massachusetts. In the context of a records deposition, the attorney can still provide the recordkeeper with his or her Rhode Island address and notify the recordkeeper that if the records are provided to the Rhode Island law office within the appropriate time, appearance at deposition is not required. Cost will factor into whether to issue subpoenas for out-of-state records, rather than request them through Rule 34, but on occasion the benefits of obtaining the subpoenas outweigh the downside of the costs.

§ 32.4

NONDISPOSITIVE MOTIONS AND SANCTIONS

Disputes over discovery are inevitable. Whether the dispute is something as basic as the timeliness of answering interrogatories or whether it involves more analysis, such as a dispute over the appropriateness of questioning at a deposition, each county has a motion calendar to address the dispute. However, the Rhode Island Superior Court Rules of Civil Procedure are clear on one point: the parties should first try, in good faith, to resolve the dispute beforehand when it regards a deponent’s failure to answer questions, a corporation’s failure to designate a witness under Rule 30(b)(6) or 31(a), a failure to answer interrogatories, a failure to respond to requests for production of documents, or a failure to respond to a request for inspection. Super. R. Civ. P. 37(a)(2). For purposes of the good faith requirement, an incomplete or evasive answer or response is to be treated as a failure to answer or respond. Super. R. Civ. P. 37(a)(3). The normal practice with respect to incomplete or missing discovery responses is to first attempt to resolve the issue informally, in accordance with the good faith requirements set above. This can be done with a simple reminder phone call or letter if responses are overdue. For more substantive disputes, a letter or draft motion outlining your concerns with the responses may be in order. If these efforts do not resolve the dispute, motion practice is the next step.

32–17

§ 32.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Unless exigent circumstances require a hearing on short notice, the rules require a minimum of ten days’ notice prior to the hearing on a motion. Super. R. Civ. P. 6(c). Each justice has individual rules regarding notice for dispositive motions, but this section is only intended to address nondispositive discovery motions. Each county has a different day for hearing nondispositive motions. The usual hearing days for motions are as follows: • Providence County (by far the busiest): every Wednesday and Thursday, • Kent County: the second and fourth Mondays of the month, • Washington County: the third Monday of the month, and • Newport County: the first Monday of the month. When filing a motion, the moving attorney should include the date that the motion will be heard, being mindful of the ten-day requirement. If the motion is subject to the good faith requirements, it should also contain a certification that good faith efforts to resolve the disputed issue were made or attempted, and should be signed by the attorney. Infrequently, an attorney will file a motion without having engaged in good faith efforts to resolve the issue beforehand, but then accompany the motion with a letter written as a “good faith” effort to resolve the issue. While there is no case law on point as to whether such a tactic is appropriate, the plain language of Rule 37 contemplates that the good faith effort has been made prior to the filing of the motion. The following is a sample of the notice language in a motion: Please take notice that the within motion will be called for hearing on the 6th day of January, 2010 at 9:30 in the forenoon of that day or as soon thereafter as counsel can be heard. _____________________ Signature of Attorney The following is a sample of the certification of good faith efforts: Please be advised that the undersigned counsel for the defendant has conferred or attempted to confer with counsel for the plaintiff in a good faith attempt to resolve the above-mentioned dispute prior to filing of the instant motion, which involved telephone 32–18

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.4

conversations with counsel for the plaintiff by the undersigned counsel, on several occasions. Despite the good faith efforts, the parties are unable to resolve the dispute. _____________________ Signature of Attorney The remedy sought, in the first instance, in a discovery motion will be the production or answering of the discovery request. Thus, one may seek a court order compelling document production or compelling answers to interrogatories (or more complete document production or interrogatory answers). The motion will need to seek a specific amount of time in which the discovery will be provided. Often, thirty days is sought, but there is no hard-and-fast rule. If the motion is granted, an order will follow. Unlike other jurisdictions, such as Massachusetts, the form of order in Rhode Island is customarily prepared by counsel (usually by counsel on behalf of the moving party, unless otherwise directed by the court, although the rules permit either side to prepare it) rather than the court. The proposed form of order is then submitted to the court for entry. If no competing proposed orders or objections are filed, the court will enter the order after four days. Super. R. Civ. P. 5(g). If the period of time for compliance with a discovery order has passed and there has been no compliance, the party seeking the discovery can petition the court for further consequences. The options available are set forth in Rule 37(b). Despite the numerous options available, the most common in a discovery context is to seek a dismissal (against a plaintiff) or default (against a defendant) relief from which is conditioned upon the party’s compliance with the discovery request. The language of such orders granting a motion for conditional dismissal or default is fairly specific and should follow this form: ORDER This matter came to be heard before this Honorable Court, Justice Jones presiding, on February 23, 2010, on Defendant, Blackacre Hospital’s, motion for entry of a conditional order of dismissal for failure of Plaintiff to provide document production by February 4, 2010, pursuant to this Honorable Court’s order, of January 6, 2010. After hearing thereon, it is hereby: ORDERED, ADJUDGED, & DECREED 32–19

§ 32.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

1. Defendant’s motion is granted; 2. Said dismissal may be deemed vacated if the Plaintiff complies with the discovery request and the previous Order of this Court by furnishing responses to requests for production within thirty (30) days of the hearing, that is, on or before March 28, 2010; 3. If Plaintiff fails to provide responses to requests for production on or before March 28, 2010, this order of dismissal may become final upon further motion and hearing thereon. Finally, of course, if the opposing party still does not provide discovery responses after having a conditional order of dismissal against it, a motion for entry of final judgment of dismissal may be appropriate. In cases where a conditional order of default on liability has entered, a motion for entry of a final default on liability may be appropriate after which the only remaining issue to be determined by the jury would be damages. Obviously, these are drastic measures, as they terminate certain rights of the litigants. The motivation in entering into motion practice is to receive discovery, not to lay the groundwork for dismissal or default, but on rare occasion—and rarer still in a medical malpractice case—the litigation will be ended upon final judgment for failure to comply with discovery orders.

§ 32.4.1 Scheduling Orders/Scheduling Conferences Scheduling orders have increasingly provided the blueprint for discovery in medical malpractice litigation in Rhode Island. Rules 16 and 26 allow for scheduling orders. Essentially, they provide for a schedule of discovery in a case. Typically, a scheduling order will address the timeline for discovery, including the following: • when so-called fact discovery should be completed (including discovery under Rules 33 and 34 and deposition of nonexpert witnesses); • when expert disclosures are due (and in medical malpractice cases, an expert—or more than one—will be necessary); and • the timeline for the disclosure and depositions (if taken) of expert witnesses.

32–20

DISCOVERY IN MEDICAL NEGLIGENCE CASES

§ 32.4

With acknowledgment to the passage of time, it can be written that at present, the Superior Court typically will have an administrative order or practice that controls scheduling in medical malpractice litigation. Generally, the parties to a malpractice action will be expected to enter a scheduling order, which in deviation from the general rule set forth above, may be prepared by the judge. The order will set forth the schedule of discovery, fact, and expert. Violations of the order will be subject to the sanctions set out in Rule 37(b). Close conferencing with the scheduling judge is contemplated through the program. Thus, whether a case is situated in Providence County or one of the “outlying” counties (Newport, Kent, or Washington (a/k/a South)), prior to a trial date being assigned, the scheduling judge must first be satisfied that the case is on schedule to realistically be reached for trial.

§ 32.4.2 Learned Treatises If a party wishes to support the claim or defense of a case through literature, otherwise known as a “learned treatise,” the fact of such reliance must be made to the other side no sooner than thirty days prior to trial. R.I. Rules of Evidence 803(18); R.I. Gen. Laws § 9-19-30; see also Flanagan v. Wesselhoeft, 765 A.2d 1203 (Flanagan I). Learned treatises can support the theory of a case, and perhaps in no case are they more relevant that medical malpractice, but they cannot supplant the opinions of qualified expert witnesses. See Foley v. St. Joseph Health Serv., 899 A.2d 1271 (R.I. 2006). To avoid preclusion based on a theory of “trial by ambush,” well prior to trial, and within the statutorily designated period, a party should disclose the treatises that it will rely on at trial to support its case. Reading the Foley case and others, no lawyer should expect that he or she can prevail on a case simply through written literature, rather than a live and qualified expert witness. In medical malpractice cases, the definition of “qualified” witness may vary. For guidance on the issue, one should be familiar with Debar v. Women & Infants Hospital, 762 A.2d 1182 (R.I. 2000). That said, trying to prove a case without a witness will prove futile as the case law stands and the statutory law stands in Rhode Island. Schneck v. Roger Williams Hosp., 119 R.I. 510, 514 (1977); R.I. Gen. Laws §§ 9-19-41, 9-19-33. Scheduling orders can prescribe a time for disclosure of learned treatises that deviate from the statutory provisions.

32–21

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

32–22

DISCOVERY IN MEDICAL NEGLIGENCE CASES

EXHIBIT 32A—Sample Interrogatories in a Medical Malpractice Case, Issued by Defendant STATE OF RHODE ISLAND PROVIDENCE, SC. ____________________________________ : Jane Doe, as Administratrix of Estate : of John Doe : : V. : : Bad Actor, Incorporated : ____________________________________:

SUPERIOR COURT

C.A. NO. PC08-0000

DEFENDANT, BAD ACTOR INC.’S INTERROGATORIES PROPOUNDED TO PLAINTIFF Pursuant to Rule 33 of the Rhode Island Rules of Civil Procedure, defendant, Bad Actor, Inc., requests that the plaintiff, Jane Doe answer each of the within interrogatories, separately and fully, in writing and under oath, within forty (40) days of service. INTERROGATORIES 1. State your full name, home address (beginning five years prior to the date of the incident), business address, and date of birth. If you have ever used or been known by any other names, please state each name you have used or been known by. 2. State the decedent’s full name, home address (beginning five years prior to the date of the incident), educational background, (beginning with Junior High School) occupational background (beginning ten years prior to the date of the incident), business address at the time of death, date of birth, social security number, dates of each marriage, marital status at the time of death, name and present addresses of all spouses and names and dates of birth of all children. If the decedent ever used or was known by any other names, please state each name the decedent used or was known by. 3. Identify each and every person known or believed to be a witness to the matters alluded to in the Complaint (or the facts relating thereto), or known or

32–23

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

believed to possess any material knowledge concerning either the matters or injuries or damages claimed by you, and as to each such individual please state: (a) their current address; (b) whether or not plaintiff intends to call this individual to testify at trial; (c) a description of their knowledge of the matters or injuries or damages claimed, including, if applicable, a description of their anticipated trial testimony. 4. If you contend that any defendant at any time made any admissions against interest to anyone pertinent to the subject matter of this litigation, set forth the time and place of each such admission; how made; to whom made; by whom made; the substance of the admission; and identify all persons having knowledge pertaining thereto. 5. State the time, place and substance of any conversations which you or the decedent had or which any other persons had with this defendant, or with any other person, in any way relating to the proof you intend to offer under the allegations of the Complaint (e.g., discussions or statements by other health care providers, etc.) 6. If you or anyone acting on your behalf has obtained any statements, voice recordings, reports or other transcriptions of any kind from any witnesses or individuals having knowledge concerning the subject matter of this Complaint, please state for each such statement: (a) the name of the person who gave it; (b) the name, address and occupation of the person who took it; (c) the date and place the statement was given; and (d) the name and address of the person, firm, or corporation presently having custody of it. 7. Did you or the decedent give a statement or report to any person, firm or corporation concerning the subject matter of the within Complaint, and if so, set forth the date that each such statement was given, the name, address and occupation of the person to whom and for whom the statement was given as well as the name and address of the person, firm, or corporation having possession of same.

32–24

DISCOVERY IN MEDICAL NEGLIGENCE CASES

8. Identify each act or omission, including the date thereof, of each defendant which you contend deviated from accepted standards of medical practice including but not limited to the following areas: (a) diagnosis of the decedent; (b) examination of the decedent; (c) treatment or management of patient care of the decedent; (d) interpretation of test results and/or radiographic films of the decedent; (e) performance of surgery (if applicable) on the decedent; and (f) advice and information to you and/or the decedent. 9. State fully and accurately all of the facts upon which you rely in support of the allegation that each defendant, including this defendant, was negligent. 10. Give an itemized statement (and identify each provider) of the expenses, if any, allegedly incurred as a result of the matters mentioned in the Complaint for medicines, medical services, hospital care, dentists and/or doctors, the date or dates when each was rendered or supplied, and the charge for each and whether these expenses have been paid or reimbursed by a third-party payor. 11. If you or the decedent ever filed a lawsuit or asserted a claim because of any injury or damage allegedly sustained by the decedent, state when, where and against whom such claim was asserted, the nature of the injury, illness or disability for which it was asserted, and the disposition of the claim. If a lawsuit was filed, identify the lawsuit by name, identify the Court in which suit was brought, give a brief account of the circumstances thereof, the name and address of each party and insurer (if any) against whom claim was made or suit was brought, and if the claim or suit has been settled, please identify any settlement monies paid as a result thereof. 12. If you have made a claim for or have received money, medical payments, benefits, liability insurance proceeds, or other third-party settlement, social security benefits, union benefits, or workers compensation benefits because of this subject matter, state the amount claimed or received, date claimed or received, if paid and the name and address of the person, company or insurer who paid the same. 13. If you or your attorney know of the existence of any medical report or hospital records concerning the injuries about which you complain, state with regard to each the nature and date of each, the name and address of the person, 32–25

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

firm, or corporation having custody of the original and whether or not you or your attorney have copies. 14. Identify by name, address and field of specialty each and every health care provider, including mental health care providers such as psychiatrists, psychologists, social workers and counselors, with whom the decedent treated for the period beginning ten (10) years before the alleged medical negligence, specifying the treatment received and the dates thereof. 15. State whether you ever pleaded guilty or nolo contendere or were ever convicted of any criminal offense(s), and if so, state the charge(s), date(s), court(s), and disposition(s). 16. List the name(s) and address(es) of any person(s) who have been retained to testify as an expert witness on your behalf, setting forth the qualifications of each and his/her field of specialization, his/her residence and business address and state: (a) the subject matter on which the expert is expected to testify; (b) the substance of the facts and opinions to which the expert is expected to testify; and (c) a summary of the grounds of each opinion. 17. Identify by name, medical specialty and business address all health care providers or mental health care providers who have been adversely critical of the care rendered to the decedent by this defendant, describing the criticism and when and where the criticism was made. 18. Identify each and every writing, document, treatise, text or correspondence, concerning any matter germane to this suit or the proof of which you will offer under the Complaint and not specifically identified in your answers to the preceding interrogatories (including but not limited to any work, treatise, text or authority upon which you will rely at trial) and identify each such writing, etc., by date, author, and general description of contents. 19. Identify each and every diary, log, chronology or other writing prepared by you regarding the allegations contained in the First Amended Complaint. 20. State the life expectancy of the decedent as of the date of death and identify the reference source used by you in computing such life expectancy. 21. Identify and set forth each and every economic trend, including but not limited to projected purchasing power of money, inflation and projected increase 32–26

DISCOVERY IN MEDICAL NEGLIGENCE CASES

or decrease in the cost of living, which you contend to be material to the computation of damages in this action (identifying each reference source), including: (d) the projected inflation rate; (e) the productivity growth rate, if any; (f) the interest rate used to discount projected earnings to present value; and (g) any other growth rate or interest rate used in computing present value. 22. Itemize and set forth the gross amount of the decedent’s prospective income or earnings over the decedent’s remaining life expectancy, including all estimated income that probably would have been earned by the decedent’s exertions, both physical and mental, and state the decedent’s projected gross annual earnings in current dollars. 23. Itemize and set forth, item by item, the estimated personal expenses that the decedent probably would have incurred for himself, exclusive of any other dependents, over the course of the decedent’s life expectancy, setting forth all facts and identifying all documents upon which you rely. 24. Set forth the nature of the decedent’s occupation or self-employment for five (5) years prior to the decedent’s death, including the name and address of each employer, the time worked for each (giving dates); decedent’s weekly earnings in each such employment; and the decedent’s gross annual earnings for each of such years. If a claim for lost wages is being made, itemize and set forth the amount of such claim and the inclusive dates. 25. State the value of the decedent’s estate at the date of death, itemizing and identifying both real and personal property; and in connection therewith: (a) describe the life insurance and accident and health insurance policies held by the decedent at the time of decedent’s death, and include the name and addresses of the issuing companies and the policy number; (b) the face amount of each policy; (c) the names and addresses of the beneficiaries; and (d) the annual premium for each policy whether or not any claims have been presented under the said policies, or any of them, and if any claims have been presented, the payments, if any, which have been made to the beneficiaries. 32–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

26. State in detail, item by item, any other claims and/or items or elements or damage(s) not set forth in the answers to the above which you allegedly have against this defendant, giving all pertinent particulars. 27. Identify, in detail, by name, age, home address and relationship to decedent, all of decedent’s heirs and beneficiaries. 28. List all persons plaintiff intends to call to testify at trial in the proof of this case. BAD ACTOR By his Attorneys, JONES & SMITH _____________________ Mr. Smith, Esquire #0001

32–28

DISCOVERY IN MEDICAL NEGLIGENCE CASES

EXHIBIT 32B—Sample Document Request STATE OF RHODE ISLAND PROVIDENCE, SC. ____________________________________ : Jane Smith : : V. : : Jimmy Jones, MD : ____________________________________:

SUPERIOR COURT

C.A. NO. PC08-0000

DEFENDANT, Jimmy Jones’ REQUEST FOR DOCUMENT PRODUCTION TO THE PLAINTIFF Pursuant to Rule 34 of the Rhode Island Rules of Civil Procedure, this defendant requests that the plaintiffs produce for inspection the following: 1. Any and all medical records, bills, reports, of whatever nature and kind, including office notes and x-rays, from any and all physicians, psychiatrists, psychologists, counselors, social workers, hospitals or other health care providers, whose services are alleged to have been required for the decedent by the incident(s) which is (are) the subject of this litigation. 2. Any and all medical records, bills and reports, of whatever nature and kind, including office notes and x-rays, from each physician, psychiatrist, psychologist, counselor, social worker, hospital or other health care provider with whom decedent treated for ten (10) years prior to the within incident up to and including the time of death. 3. Any photographs, videotapes or movies in your possession, custody or control, depicting damages or injuries to the plaintiffs caused by the alleged malpractice of the defendants. 4. All statements taken from all defendants regarding the incident which is the subject of this litigation. 5. Each and every writing, document, treatise or text which plaintiff intends to introduce or use at trial to establish that this defendant breached the applicable standard of care in connection with the incident which is the subject matter of the Complaint.

32–29

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

6. Each and every diagram, drawing, photograph, radiograph, pictorial representation, illustration, graphic enlargement, or the like which plaintiff intends to utilize at trial to establish liability or damages. 7. Each and every diary, chronology, log or the like prepared by or on behalf of the plaintiff, describing the circumstances leading up to, including and following the alleged malpractice of this defendant. 8. Wage statements, W-2 forms, and income tax returns filed by or on behalf of decedent from three (3) years before the incident in question. 9. Any and all claims made by plaintiff for payment and/or reimbursement from Social Security, health insurers, TDI, worker’s compensation or like collateral source. 10. Evidence of payments received or made by Social Security, health insurers, TDI, worker’s compensation or like collateral source. 11. All writings or other documents you contend establish or reflect any standard of medical care you claim defendants failed to observe or follow correctly in their treatment or other contact with decedent. 12. A photograph of decedent’s face, with sufficient clarity, taken in 2009. 13. All computations of claimed loss earning capacity or future medical expenses. 14. Any and all curriculum vitae and expert reports prepared by any experts you have retained to testify at the trial of this matter. 15. Any and all autopsy reports and post-mortem examination reports, whether done privately or by the State, performed on the decedent. 16. All documentary proof that plaintiff, Jane Doe, is the legal representative of the Estate of decedent. 17. All filings, pleadings, and the like, filed with the probate court regarding the Estate of decedent. 18. Death certificate of decedent. 19. Any diary, log, chronology or similar writings prepared by the decedent. 20. Any diary, log, chronology or similar writing prepared by you and in any way related to facts or allegations contained in the First Amended Complaint. 32–30

CHAPTER 33

Discovery in Mass Tort Litigation/Consolidated Cases Leah J. Donaldson § 33.1

Introduction ........................................................................ 33–1

§ 33.2

Definition of “Mass Tort” .................................................. 33–1

§ 33.3

Appointment and Roles of Counsel .................................. 33–3

§ 33.4

Pro Hac Vice Procedure..................................................... 33–3

§ 33.5

Document Preservation...................................................... 33–5

§ 33.6

Timing of Discovery ........................................................... 33–5

§ 33.7

Protective Orders, Privilege Claims, and Confidentiality............................................................. 33–6

§ 33.8

Discovery Plan .................................................................... 33–8

§ 33.9

Interrogatories and Document Requests.......................... 33–8

§ 33.10 Ex Parte Contacts with Health Care Professionals ......... 33–9 § 33.11 Coordination with Related Litigation .............................33–11 EXHIBIT 33A—Sample Protective and Confidentiality Order ............................................................................................... 33–13 EXHIBIT 33B—Sample Order for Master Discovery Sets......... 33–17 EXHIBIT 33C—Ex Parte Communication with Treating Physicians ................................................................ 33–19

33–i

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

33–ii

CHAPTER 33

Discovery in Mass Tort Litigation/Consolidated Cases Leah J. Donaldson

Scope Note This chapter acquaints the reader with the challenges posed by discovery in the context of cases involving multiple parties and claims related to a single event. The preservation of evidence, the timing of discovery, protective orders, and the discovery plan are among the topics covered.

§ 33.1

INTRODUCTION

Large-scale litigation poses unique discovery challenges that must be handled differently than standard discovery by the parties, their counsel, and the courts. Duplicative discovery activity can arise in mass tort and consolidated cases involving numerous parties and numerous claims related to a single accident or exposure to the same harmful product. Many witnesses in related cases may be identical, but would be deposed separately in different cases. Similarly, written discovery may be repeated in separate cases. Further, uncoordinated discovery activities simply increase expense, delay, and frustration. Due to their size, mass torts have the potential to clog court dockets and waste judicial and party resources. Fortunately in Rhode Island, we have a history of well-managed mass tort dockets that have allowed cases to be handled economically, professionally, and fairly. Proper planning and coordination of mass tort discovery can aid in ensuring large-scale litigation runs smoothly and efficiently.

§ 33.2

DEFINITION OF “MASS TORT”

A mass tort is a civil action involving numerous plaintiffs against one or a few corporate defendants in state or federal court. In Rhode Island, a mass tort generally exhibits many, if not all, of the following characteristics: 33–1

§ 33.2

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

• a large number of parties involved; • many claims involving common, recurrent issues of law and fact that are associated with a single product, mass disaster, or complex environmental or toxic tort; and/or • common injuries or damages incurred. Thus far, there have been three general classes of cases determined to be mass torts in Rhode Island. These include: • litigation stemming from mass disasters—for example, the Station Fire litigation; • litigation in which large numbers of claims are associated with a single product—for example, products liability cases like the Kugel Mesh litigation consolidated in Rhode Island Superior Court and In re Kugel Mesh Hernia Patch Products Liability Litigation, MDL-1842, transferred to the U.S. District Court for the District of Rhode Island; and • litigation involving environmental or toxic torts where claims arise from a common event—for example, Rhode Island asbestos litigation. For cases filed in Rhode Island Superior Court, the court generally follows a calendar assignment system. However, where multiple causes of action have arisen from a mass tort, the presiding justice has made an exception and issued administrative orders assigning a specific justice to manage all such claims. The assigned justice is generally responsible for managing, supervising, scheduling and disposing of all trial and pretrial matters, including, but not limited to, pretrial discovery motions, discovery proceedings and dispositive motions. In determining whether a mass tort is warranted, one of the factors considered is whether coordinated discovery would be advantageous. Similarly, when multiple causes of action arising from a common mass tort are filed in the U.S. District Court for the District of Rhode Island, the cases may be coordinated or consolidated for pretrial discovery under Federal Rule of Civil Procedure 42(a). Manual for Complex Litigation (Fourth) § 10.123 (2009). In addition, even where related cases are filed in different federal courts, pretrial proceedings may be consolidated to a single district court by the Judicial Panel on Multidistrict Litigation under 28 U.S.C. § 1407. Manual for Complex Litigation (Fourth) § 10.123. A multidistrict litigation (MDL) transferee judge usually supervises discovery, decides motions and, where appropriate, decides whether to certify a class action. Manual for Complex Litigation (Fourth) § 22.36. 33–2

MASS TORT LITIGATION/CONSOLIDATED CASES

§ 33.3

§ 33.3

APPOINTMENT AND ROLES OF COUNSEL

The court may find it helpful to appoint lead and/or liaison counsel for plaintiffs or defendants to simplify communication and attorney coordination. Lead or liaison counsel can greatly assist in coordinating discovery activities in large-scale litigation. The roles and responsibilities for lead or liaison counsel may vary based on counsel agreements or the needs of the court. Liaison counsel’s role can be very limited. For example, when appointing defendants’ liaison counsel in the Rhode Island Superior Court asbestos litigation, the court ordered that such appointment did not “in any way impair the rights of any individual defendant” to act on its own behalf, file pleadings with the court, orally argue motions on its own behalf, or serve or respond to discovery. Further, the order did not relieve any party of its obligations with regard to service and filing of pleadings. Liaison counsel may also be assigned extensive duties by the court. The order appointing plaintiffs’ liaison counsel in the Rhode Island Superior Court in the Kugel Mesh Hernia Patch litigation included a detailed list of responsibilities of plaintiffs’ liaison counsel, including: • serving as the primary conduit between the court and plaintiffs’ counsel, • being responsible for all court filings, • receiving on behalf of all plaintiffs’ counsel notice of court orders and notice of pretrial conferences, • serving defendants’ attorneys with all papers, • receiving service for all papers filed by defendants’ counsel, • acting as spokesperson for all plaintiffs at pretrial proceedings, • negotiating and entering into stipulations with defendants regarding the litigation, and • providing periodic status reports to the court.

§ 33.4

PRO HAC VICE PROCEDURE

Involvement of nonresident counsel is common in mass tort litigation. Pro hac vice admissions in Rhode Island Superior Court are governed by R.I. Sup. 33–3

§ 33.4

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Ct. R. 9(a). Generally, in Rhode Island, nonresident attorneys are granted pro hac vice admission infrequently and under special circumstances, such as when a particular client requires the assistance of an out-of-state attorney in a particular court proceeding. Under Rule 9(a), a nonresident attorney may not appear pro hac vice in more than three cases within a five-year period. This can present a problem in the context of mass tort litigation. Rule 9(a) also allows the court the discretion authority to allow counsel to petition to waive this limitation for good cause shown. For example, in the Rhode Island asbestos litigation, upon an unopposed motion, the court ordered the following: “[O]nce a Plaintiff or Defendant has moved for pro hac vice appearance shall be so granted and extended in all cases pending and to be filed with this Court in the future, so long as no party objects.” Pro hac vice admission is similarly strict in the U.S. District Court for the District of Rhode Island. Such admissions are governed by Rule 204 of the Local Rules for the District of Rhode Island. Under Rule 204, an attorney may be admitted pro hac vice if she is a member in good standing of another federal district court and the bar in every jurisdiction where she is admitted; can establish she is qualified and fit to practice in the District of Rhode Island; and affiliated with local counsel. Local counsel retains a great deal of responsibility under Rule 204, including, but not limited to, the requirement that local counsel “shall be fully prepared to assume sole responsibility” for the case. For this reason, Rule 204 also requires pro hac vice counsel to “consult with, involve and fully inform local counsel with respect to all matters affecting the case.” In the Kugel Mesh MDL in Rhode Island federal court, the court included the following language in the case management order to simplify the pro hac vice process in the MDL: Each attorney acting as counsel for any party herein who is a member in good standing of the bar of the Supreme Court of any state or of any U.S. District Court shall be deemed admitted pro hac vice before this Court, for all purposes in these proceedings, without further action or order. The Court reserves the right to revoke admission pro hac vice if appropriate. Any counsel so appearing agrees to be bound by the local rules of this Court and by the ethical obligations of an attorney appearing pro hac vice before this Court. In re Kugel Mesh Hernia Patch Prods. Liab. Litig., MDL-1842 (Case Management Order). Further, the court ordered that “[c]ounsel who appeared in the 33–4

MASS TORT LITIGATION/CONSOLIDATED CASES

§ 33.4

transferor district court prior to the transfer need not enter a separate appearance before this Court.” The court later extended that order to all cases transferred to the District of Rhode Island by the MDL.

§ 33.5

DOCUMENT PRESERVATION

Once a mass tort is established and/or as litigation unfolds, a preservation order or case management order may be entered. Such an order may include the following provisions: • requiring each party to preserve all documents and other records containing information that is potentially relevant to the litigation and all physical evidence on potential evidence; • prohibiting parties from destruction of automated data; and/or • requiring advance notice to opposing counsel, and their consent or the court’s permission, before any tests may be conducted on physical evidence.

§ 33.6

TIMING OF DISCOVERY

Discovery of mass tort cases in Rhode Island are generally governed by the Rhode Island Superior Court Rules of Civil Procedure, including when discovery may occur. Under Rule 30(a), parties may generally seek to depose any person, including a party, at any time, without leave of court, except when the proposed deponent has already been deposed, is confined in prison, or where a plaintiff seeks a deposition within thirty days after service of process on any defendant (with certain exceptions). Under Rule 33(a), interrogatories may be served by defendants upon any other party at any time after commencement of the action; plaintiffs must wait sixty days after service of process before serving interrogatories or, if the plaintiff wishes to serve interrogatories sooner, he or she must seek leave of court. Under Rule 34(b), document requests may be served upon the plaintiff after commencement of the action and upon any other party with or after the service of summons and complaint upon that party. However, the straightforward timing of discovery in ordinary civil cases in Rhode Island may be complicated by the ongoing addition of new parties in mass tort litigation. New actions may be filed throughout the course of the litigation. Additional defendants may join as discovery commences via plaintiffs’ complaints, amended complaints, or via third-party complaints. For example, in a typical asbestos case, there may be five to 200 defendants. A plaintiff may 33–5

§ 33.6

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

name all possible parties in the complaint, but often, the plaintiff or defendants will bring in additional parties through amended complaints or third-party practice as discovery progresses. Because of this, discovery should not ordinarily be postponed until all parties have joined. In fact, in many cases, some discovery will be needed before all potential parties can be identified. Interrogatories may be served on existing parties, and their answers may be made available to, and usable by, parties added to the litigation later. Discovery in mass tort cases often has two discrete elements: discovery involving the conduct of the defendants, and discovery relating to the individual plaintiffs’ activities and injuries. The circumstances of each case will affect decisions regarding the timing of discovery. The court may direct that discovery first be conducted regarding matters relating to the defendants’ liability to all plaintiffs, and deferring discovery into the details of each plaintiff’s unique claims. Alternatively, when dealing with large-scale litigation, the court may consider limiting discovery to a few “bellwether” cases while staying discovery in other cases, or focusing discovery on legal or factual issues that may be dispositive before other discovery is started. Targeted discovery may be useful at certain points during the litigation. For example, early in litigation, discovery may target information that could facilitate settlement negotiations or provide the foundation for a dispositive motion. Such targeted discovery may be nonexhaustive, aimed at producing critical information rapidly on one or more specific issues. Targeted discovery may also be appropriate in connection with a motion for class certification.

§ 33.7

PROTECTIVE ORDERS, PRIVILEGE CLAIMS, AND CONFIDENTIALITY

At any early conference, procedures may be established to accommodate privilege claims or for protecting certain materials during discovery. Protective orders may have a role when legitimate trade secrets are involved or where there is no public impact. When determining such procedures and their scope, consideration should be given to not only the rights and needs of the parties, but also to existing or potential interests of those not directly involved in the litigation. It is important to weigh the interests of the parties in keeping the information confidential against the public interest in making such information public, especially where the heath and safety of the public are at issue. The purpose of a protective order in a mass tort is to expedite the flow of discovery material, facilitate prompt resolution of disputes over confidentiality, adequately protect confidential material, and ensure such protection is afforded only 33–6

MASS TORT LITIGATION/CONSOLIDATED CASES

§ 33.7

to material so entitled. Often in a mass tort context, defendants will not agree to begin document production until such a protective order is in place. A sample protective and confidentiality order is attached as Exhibit 33A. Such an order may provide the following: • that the producing party can designate a document as confidential if that party believes in good faith that the document is properly protected under the Rhode Island Superior Court Rules of Civil Procedure; • that “confidential” documents may be disclosed to persons employed by law firms involved in the litigation, court officials, experts, or other persons or witnesses (some orders require such person to sign an agreement which states that he or she will abide by the terms of the protective order and subjects the signor to the court’s jurisdiction should a violation occur); and • that a party or intervener may dispute the confidential designation of any document, how such a dispute is to be communicated, any related time limits, and proper steps should the parties be unable to resolve the dispute amicably. Unfortunately, protective and confidentiality orders are routinely abused. For example, often protective and confidentiality orders will call for a good-faith basis prior to designating a document as “confidential.” One type of abuse occurs when a defendant over-designates or uses “blanket” confidentiality designations, where every document produced is designated as “confidential” even where no good-faith basis exists for such a designation. This issue was recently addressed by the Rhode Island Superior Court. In a recent decision by Justice Gibney in the Kugel Mesh Consolidated litigation, the court stated that the defendants had violated the relevant protective order’s requirement of having a “reasonable and good faith belief” for confidentiality designations. Brokaw v. Davol, Inc., C.A. Nos. 07-5058, 07-4048, 07-1706, 073666, 2009 R.I. Super. LEXIS 85 (R.I. Super. Ct. June 21, 2009). The court found that the defendants had violated the order where, for example, “large quantities of documents that appear to have been disseminated to the public have been marked confidential.” Brokaw v. Davol, Inc., 2009 R.I. Super. LEXIS 85. The court ordered the defendants to “review their document production and redesignate as non-confidential all documents already in the public domain.” Brokaw v. Davol, Inc., 2009 R.I. Super. LEXIS 85.

33–7

§ 33.8

§ 33.8

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

DISCOVERY PLAN

A discovery plan should be established to promote the orderly and cost-effective exchange of discovery and expeditious resolution of discovery disputes. Counsel should collaborate, where possible, to develop an effective discovery plan. The plan should reflect the nature of the litigation. When developing a discovery plan for mass tort litigation, counsel should keep several variables in mind, including • the anticipated complexity of written discovery counsel expects to serve and to which counsel and the client must respond; • the number of depositions likely to be taken or defended, as well as the anticipated location and complexity of those depositions; • the anticipated number of documents to be reviewed during the discovery process; and • the likelihood there will be discovery disputes and related motion practice. Regularly scheduled status conferences can help monitor the progress of discovery and ensure the litigation moves forward efficiently. The discovery plan can and should be modified if such an adjustment is determined to be necessary based on progress and information that comes to light during discovery.

§ 33.9

INTERROGATORIES AND DOCUMENT REQUESTS

To avoid multiple requests for the same information, the court may encourage or require parties with similar interests to meet and create standard interrogatories. It is common in mass torts for the parties to draft master sets of interrogatories or requests for production. Such master discovery sets can greatly simplify discovery in large-scale litigation. The parties may agree to certain master discovery, which is then answered once by each party and provided to all other parties. To accommodate case-specific discovery needs, plaintiffs and defendants may be permitted to serve an agreedupon number of additional interrogatories or production requests that are not covered by the master discovery sets but are pertinent to an individual case. A sample order directing parties to create and serve master interrogatories and master requests for production is attached as Exhibit 33B. 33–8

MASS TORT LITIGATION/CONSOLIDATED CASES

§ 33.9

In lieu of standard interrogatories, questionnaires directed to individual plaintiffs in standard, agreed-upon forms have been used successfully. Such questionnaires are sometimes called “plaintiff fact sheets.” These “plaintiff fact sheets” can permit defendants to request case-specific information from individual plaintiffs in a simple and straightforward manner. Further, “plaintiff fact sheets” often contain many more individual questions than would be permitted under the rules for interrogatories. For this and other reasons, in Rhode Island such “plaintiff fact sheets” may not be converted by defendants into standard interrogatories at later stages in the litigation.

§ 33.10

EX PARTE CONTACTS WITH HEALTH CARE PROFESSIONALS

Among different states there is a great deal of conflicting information regarding whether a defendant may engage in ex parte communication with a plaintiff’s past and present treating physicians. Refer to Exhibit 33C for a multistate survey of statutory and case law on the subject of ex parte communications with a plaintiff’s treating physicians. A number of states prohibit all forms of ex parte contact, while others allow some form of ex parte communications with treating physicians. A few states have no settled law on the subject. In Rhode Island, defendants may not engage in ex parte contacts with plaintiffs’ past or present treating physicians. Under R.I. Gen. Laws § 5-37.3-4, “a patient’s confidential health care information shall not be released or transferred without the written consent of the patient or his or her authorized representative.” Section 5-37.3-4(b)(8)(ii) states that disclosure of a patient’s health care information that is relevant to a civil action brought by the patient “may occur only under the discovery methods provided by the applicable rules of civil procedure (federal or state).” It further states that any disclosure “shall not be through ex parte contacts and not through informal ex parte contacts with the provider by persons other than the patient or his or her legal representative.” Finally, the section clarifies that a patient and his or her attorney retain the right to “consult with that patient’s own physician and to obtain that patient’s own health care information.” The confidentiality provisions of the Health Insurance Portability and Accessibility Act (HIPAA), enacted by Congress in 1996, must be considered as well. 42 U.S.C. § 1320d, et seq. One of HIPAA’s goals was to “ensure the integrity and confidentiality of [patients’] information,” 42 U.S.C. § 1320d-2(d)(2)(A), and protect against “unauthorized uses or disclosures of the information,” 42 U.S.C. § 1320d-2(d)(2)(B)(ii). The secretary of the Department of Health and Human Services noted that “[p]rivacy is a fundamental right” and that “[a]mong different sorts of personal information, health information is among the most 33–9

§ 33.10

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

sensitive.” Standards for Privacy of Individually Identifiable Health Information, 64 Fed. Reg. 59,917, 60,008 (Nov. 3, 1999). These concerns, among others, have led judges to prohibit defendants from engaging in ex parte communication with plaintiffs’ health care providers. Requests seeking ex parte contacts with treating physicians become more complicated in mass torts, especially where many different jurisdictions are involved because of where parties are domiciled, where claims are filed, or where claims transferred to. Recently, in the first multidistrict litigation to be assigned to the U.S. District Court for the District of Rhode Island, In re Kugel Mesh Hernia Patch Products Liability Litigation, MDL-1842, hundreds of cases were transferred to Rhode Island for coordinated pretrial discovery from federal courts across the country. Some of the courts from which cases were transferred permitted ex parte contacts with treating physicians. However, even where courts permitted such contacts, nothing required the court in Rhode Island to allow such contacts. As such, the court denied the defendants’ request for substantive ex parte contact with treating physicians, citing judicial economy and patient privacy concerns. In re Kugel Mesh Hernia Repair Patch Litig., 2008 U.S. Dist. LEXIS 63475, aff’d, 2008 U.S. Dist. LEXIS 63476 (D.R.I. 2008). In the corresponding coordinated litigation in Rhode Island Superior Court, an order was entered also prohibiting ex parte communication with treating physicians. It has been held that defendants may not engage in substantive ex parte contacts with plaintiffs’ past or present treating physicians, even where defendants previously engaged doctors as consulting experts prior to receiving notice that they were treating physicians for mass tort plaintiffs. Such contacts would undermine the physician-patient relationship and create an unnecessary risk of disclosing irrelevant private medical information. The court restricted communications by defendants while permitting plaintiffs’ counsel to engage in ex parte communication with the plaintiffs’ physicians where those doctors had not also been named as defendants. Ex parte interviews provide no information that cannot be gathered through formal discovery under the Rules of Civil Procedure. Defendants have several conventional discovery mechanisms available to them to obtain any information they might legitimately seek via ex parte interviews, including, but not limited to, medical records, plaintiff interrogatories, plaintiff questionnaires, depositions, and defendants’ own sales representatives.

33–10

MASS TORT LITIGATION/CONSOLIDATED CASES

§ 33.11

§ 33.11

COORDINATION WITH RELATED LITIGATION

If related litigation is pending in federal court, the judge may consider the feasibility of coordination among counsel in the various cases, especially with regard to common discovery issues. Coordination among litigation in different courts can improve efficiency can improve and reduce litigation costs. In the past, counsel in mass tort litigation in Rhode Island have agreed that material produced by defendants in one case may be used in companion cases in both Rhode Island Superior Court and the U.S. District Court for the District of Rhode Island. In other jurisdiction, courts have entered orders providing that discovery taken in other cases, or other courts, could be used in proceedings of the court issuing the order. Such orders can apply to all forms of discovery or may be limited in scope. See, e.g., In re N.Y. City Asbestos Litig., No. 40000 (N.Y. Sup. Ct. March 25, 1988) (Case Management Order No. 1). By consulting with other judges, it may be possible to designate common lead or liaison counsel and/or committees, and enter parallel orders governing the function and compensation for such counsel and/or committees. Where this is not feasible, it remains desirable to provide judges involved with copies of orders and information that might affect proceedings in their court. Action taken in one court, such as settlement or dismissal, can directly affect the strategy of litigants in other courts.

33–11

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

33–12

MASS TORT LITIGATION/CONSOLIDATED CASES

EXHIBIT 33A—Sample Protective and Confidentiality Order State of Rhode Island

Superior Court

Providence, SC.

C.A. No. 09-0000

IN RE: SAMPLE CONSOLIDATED LITIGATION PROTECTIVE AND CONFIDENTIALITY ORDER This matter came before the Superior Court on January 1, 2009, on a joint motion of the parties seeking the entry of a protective and confidentiality order. Upon consideration of the papers, it is hereby ORDERED, ADJUDGED AND DECREED 1.

This Protective and Confidentiality Order (“Protective Order”) shall govern confidential, proprietary and other protected information that may be disclosed by the parties during the course of Civil Action No. 09-0000 in Superior Court of Rhode Island (“this Action”). “Confidential” material will at all times only apply to information that is subject to a legal privilege under Rhode Island Law. In the event any material is not subject to a legal privilege under Rhode Island Law, the designation of “Confidential”, as outlined in paragraph 3 below, and the terms of this Protective Order will have no application.

2.

For purposes of this Protective Order, any party may designate as “Confidential Material” any information reasonably and in good faith believed to be suitable for protection under applicable law that is contained in any document, written discovery response, testimony, or other material produced or provided by that party or its representative(s) to one or more of the other parties, whether provided voluntarily, pursuant to formal discovery procedures, or otherwise.

3.

Any party may designate a document as Confidential Material by stamping it “Confidential,” “Subject to Protective Order” or a substantial equivalent.

4.

A party may designate a document as Confidential Material after such document has been produced to another party in the course of this Action by notifying each party of the retroactive designation

5.

If responses to interrogatories, requests for admission, or other written response to discovery quote, summarize, or contain Confidential Material, the 33–13

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

parties may designate them as Confidential Material by marking the face of any such response and indicating the page and line references of the material that is to be subject to this Protective Order. 6.

Confidential Material shall be treated by the parties and their counsel as being confidential and private. Any copy made of Confidential Material shall have the same status as the original. The disclosure and use of Confidential Material shall be confined to the permissible disclosures and uses set forth below, and in no event shall a party make any disclosure or use of Confidential Material unless it is reasonably necessary to effectively prosecute their respective claims and defenses in this Action. All other disclosure and use of Confidential Material during the pendency of this Action or after its termination is hereby prohibited.

7.

Confidential Material may be disclosed only to the following persons and only insofar as it is reasonably to the effective prosecution oft the parties’ claims and defenses:

8.

a.

Parties, their representatives, in-house counsel and regular employees who are actively engaged in, or actively overseeing this Action;

b.

Counsel of record, their associated attorneys, and support staff including paralegal and secretarial personnel;

c.

Experts and consultants (including their employees) who are retained by a party to assist in the litigation of this Action;

d.

Third-party contractors and their employees who are retained by one or more parties to provide litigation0souppport or copy services in connection with the litigation of this Action;

e.

Witnesses or prospective witnesses in this Action;

f.

Court reporters and other persons involved in recording deposition testimony in this Action;

g.

Court personnel of the Superior Court of Rhode Island, or, if on appeal, of a court with appellate jurisdiction; and

h.

Jurors in this action.

Counsel for each party disclosing Confidential Material in accordance with paragraph 7 shall advise each person to whom such disclosure is made (except Court personnel and jurors) of the terms of this Order. Each party retaining such experts and/or consultants will be responsible they understand

33–14

MASS TORT LITIGATION/CONSOLIDATED CASES

the terms for this Protective Order and of the obligation of each such person to comply with those terms. Counsel shall require that each such person sign an agreement to be bound by the Protective Order and will maintain copies in their respective offices. 9.

Upon learning of any disclosure of Confidential Material to any person not authorized by paragraph 7 to receive Confidential Material, the party who so learns shall immediately (i) inform in writing the party form which the Confidential Material was originally received of such disclosure, including to whom the material was disclosed, and (ii) take all necessary steps to retrieve as soon as possible each and every copy of all Confidential Material from the unauthorized person and any person to whom the unauthorized person disclosed the Confidential Material.

10. Should any party to whom Confidential Material is disclosed object to the designation of that material as proprietary, confidential, or otherwise protected, it shall make a good faith effort to resolve the dispute informally with the disclosing party. Should the parties be unable to resolve the dispute, the Part opposing the inclusion of such material under this Protective Order, within a reasonable time, may apply to the Court for a ruling that the information should not be entitled to protection under this Protective Order. The party opposing such designation need only identify the document in a simple motion to subject it to Court review. The party designating the material as confidential shall have the burden of proving that said material is subject to protection. Until such time as the Court rules on the motion, the material that is the subject of the dispute shall continue to be subject to this Protective Order. 11. Confidential Material may be provided to the Court in connection with any pleading, motion, or other paper filed with the Court in this Action. Any pleading, motion or other paper filed with the Court containing Confidential Material shall be furnished to the trial justice’s chambers, under seal, together with a motion for protective order and proposed order containing all necessary finding and directing the sealing of the Court record. Such papers filed under seal shall not be unsealed or made a part of the public record except by further orders of this Court. No sealed materials will be furnished to the Clerk of Court for filing in the absence of a motion for protective order and order that specifies the specific documents and materials to be maintained under seal. 12. Upon written demand by a party, to be made within thirty (30) days after the final determination of the last related Action, counsel of record for each party receiving Confidential Material shall assemble and return all such material to the disclosing party, or alternatively, shall immediately destroy all 33–15

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

such material. The sole exception to the requirements described above is that information that has been incorporated into attorney work product or other privileged documents need not be returned or destroyed. Such information shall be retained by the person to whom the information was produced, and shall be treated as Confidential Material in accordance with this Order. 13. Each party shall retain all rights and remedies available to it under the law for the enforcement of this order against anyone who violates it. 14. The restrictions of this Protective Order shall continue to apply after this case is finally determined and the Court shall retain jurisdiction for all purposes in connection therewith. By order: Enter: Jones, J.

Clerk Presented By: John Smith (#0000) John Smith Law Offices, P.A. 999 South Main St. Providence, RI 02903 401-999-0000 401-999-0001 Fax

33–16

MASS TORT LITIGATION/CONSOLIDATED CASES

EXHIBIT 33B—Sample Order for Master Discovery Sets STATE OF RHODE ISLAND

SUPERIOR COURT

PROVIDENCE, SC.

C.A. NO. 09-0000

IN RE: SAMPLE CONSOLIDATED LITIGATION CASE MANAGEMENT ORDER This matter came before the Superior Court on January 1, 2009, on a joint motion of the parties seeking the entry of a case management order concerning the master interrogatories and master production requests during pretrial discovery. Upon consideration of the papers, it is hereby ORDERED, ADJUDGED AND DECREED 1.

Defendants, collectively, may serve one Master Set of Interrogatories on Plaintiffs, not to exceed forty (40) questions with reasonable subparts. In addition to the Master Set, Defendants may serve on each Plaintiff up to ten (10) additional Supplemental Interrogatories that are non-duplicative of the Master Set.

2.

Plaintiffs, collectively, may serve one Master Set of Interrogatories on Defendants, not to exceed forty (40) questions with reasonable subparts. In addition to the Master Set, Plaintiffs serve on each Defendant up to ten (10) additional Supplemental Interrogatories that are non-duplicative of the Master Set.

3.

Upon written motion and a showing of good cause, a party may be allowed to serve additional interrogatories as the court may allow.

4.

Defendants, collectively, may serve one Master Set of Requests for Production on Plaintiffs. Each Plaintiff shall respond to the Master Set only once. In addition to the Master Set, Defendants may serve on each Plaintiff additional Supplemental Interrogatories that are non-duplicative of the Master Set.

5.

Plaintiffs, collectively, may serve one Master Set of Requests for Production on each Defendant. Each Defendant shall respond to the Master Set only once. In addition to the Master Set, Plaintiffs may serve on each Defendant additional Supplemental Interrogatories that are non-duplicative of the Master Set. 33–17

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

6.

Documents produced in response to the Requests shall be duplicated only once and made available for inspection at the law offices of John Smith in Providence, R.I. Any party may request a copy of responsive documents and the reasonable expense for such duplication shall be borne by the requesting party.

7.

No additional discovery shall be undertaken by Defendants until they serve the Master Set of Interrogatories and Requests for Production described in paragraphs 1 and 4. No additional discovery shall be undertaken by Plaintiffs until they serve the Master Set of Interrogatories and Requests for Production described in paragraphs 2 and 5.

By order: Enter: Jones, J.

Clerk Presented By: John Smith (#0000) John Smith Law Offices, P.A. 999 South Main St. Providence, RI 02903 401-999-0000 401-999-0001 Fax

33–18

MASS TORT LITIGATION/CONSOLIDATED CASES

EXHIBIT 33C—Ex Parte Communication with Treating Physicians States Where Ex Parte Communication with Treating Physicians Is Prohibited

STATE

PRECEDENT

STATUTE

Alabama

Horne v. Patton, 287 So. 2d 824 (Ala. 1974)

Arizona

Duquette v. Superior Court, 778 P.2d 634, 642 (Ariz. Ct. App. 1989)

A.R.S. § 12-2236

Arkansas

Kraemer v. Patterson, 342 Ark. 481, 492 (Ark. 2000)

Ark. R. Evid. 503(d)(B)

California Connecticut

Cal Civ Code § 56.10 Valentino v. Gaylord Hosp., 1992 Conn. Super. LEXIS 456 (Conn. Super. Ct. Feb. 19, 1992)

Florida Georgia

Conn. Gen. Stat. § 52146o

Fla. Stat. § 456.057 Moreland v. Austin, 2008 Ga. LEXIS 864 (Ga. Nov. 3, 2008)

O.C.G.A. § 24-9-40 (statute allows ex parte contact but held to be pre-empted by HIPAA)

33–19

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

STATE Illinois

PRECEDENT Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (Ill. App. Ct. 1st Dist. 1986);

STATUTE 210 ILCS 85/6.17

Hall v. Flowers, 343 Ill. App. 3d 462 (Ill. App. Ct. 4th Dist. 2003) (exception created allowing ex parte communication regarding hospital’s own records when that hospital is a defendant because hospital is not third party) Indiana

Cain v. Back, 889 N.E.2d 1253 (Ind. Ct. App. 2008)

Iowa

Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353 (Iowa 1986)

Maine

Neubeck v. Lundquist, 186 F.R.D. 249 (D. Me. 1999)

Massachusetts

Schwartz v. Goldstein, 508 N.E.2d 97 (Mass. 1987)

Minnesota

In re Baycol Prods. Litig., 219 F.R.D. 468 (D. Minn. 2003)

Mississippi

Thomas v. Prevou, 2008 U.S. Dist. LEXIS 11310 (S.D. Miss. Feb. 1, 2008)

Montana

Hampton v. Schimpff, 188 F.R.D. 589 (D. Mont. 1999)

33–20

Minn. Stat. § 595.02

MASS TORT LITIGATION/CONSOLIDATED CASES

STATE

PRECEDENT

STATUTE

New Mexico

Church’s Fried Chicken No. 1040 v. Hanson, 114 N.M. 730 (N.M. Ct. App. 1992)

North Carolina

Davis v. City of New Bern, 659 S.E.2d 53 (N.C. Ct. App. 2008)

Rhode Island

In re Kugel Mesh Hernia Repair Patch Litig., 2008 U.S. Dist. LEXIS 71345 (D.R.I. Sept. 19, 2008)

Tennessee

Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722 (Tenn. 2006)

Utah

Sorensen v. Barbuto, 2008 UT 8 (Utah 2008)

Virginia

McCauley v. Purdue Pharma, L.P., 224 F. Supp. 2d 1066 (W.D. Va. 2002)

Washington

Rowe v. Vaagen Bros. Lumber, Inc., 100 Wn. App. 268 (Wash. Ct. App. 2000)

Va. Code Ann. § 8.01399

States Where Ex Parte Communication with Treating Physicians Is Permitted STATE

Alaska

PRECEDENT / STATUTE Langdon v. Champion, 745 P.2d 1371 (Alaska 1987)

NOTES

Physician can not be compelled to submit to ex parte contact.

PRE/POST HIPAA Pre-HIPAA

33–21

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

STATE

Colorado

PRECEDENT / STATUTE

NOTES

Samms v. District Court, 908 P.2d 520 (Colo. 1995)

Ex parte contact allowed re: matters not subject to a physician-patient privilege.

PRE/POST HIPAA Pre-HIPAA

Plaintiff must be given reasonable notice of such interviews to permit plaintiff or plaintiff’s attorney to attend or to take other appropriate steps to ensure privileged information would not be discussed. Delaware

Green v. Bloodsworth, 501 A.2d 1257 (Del. Super. Ct. 1985)

District of Columbia

Street v. Hedgepath, 607 A.2d 1238 (D.C. 1992)

Pre-HIPAA

Idaho

Pearce v. Ollie, 121 Idaho 539 (Idaho 1992);

Pre-HIPAA

Idaho Code § 9203 (appears to contradict holding)

33–22

Health care providers can not be compelled to submit to ex parte contact.

Pre-HIPAA

MASS TORT LITIGATION/CONSOLIDATED CASES

STATE

Kansas

Kentucky

Maryland

Michigan

PRECEDENT / STATUTE

NOTES

Sample v. Zancanelli Mgmt. Corp., 2008 U.S. Dist. LEXIS 13674 (D. Kan. Feb. 21, 2008); K.S.A. § 60-427

Notice required only in absence of court order.

PRE/POST HIPAA Post-HIPAA (Court deems state law “more stringent” than HIPAA)

Weiss v. Astellas Pharma, US, Inc., 2007 U.S. Dist. LEXIS 53453 (E.D. Ky. July 23, 2007)

Post-HIPAA

Butler-Tulio v. Scroggins, 774 A.2d 1209 (Md. Ct. Spec. App. 2001)

Post-HIPAA

Barnes v. Beattie, 2006 Mich. App. LEXIS 2405 (Mich. Ct. App. July 27, 2006); MCR 2.314

(Pre-emption not directly addressed)

(HIPAA not mentioned in ruling) Physician cannot be compelled to submit to ex parte contact.

Post-HIPAA (Court mentions HIPAA only to state that defendant did not provide relevant argument.)

Missouri

Brandt v. Pelican, 856 S.W.2d 658 (Mo. 1993)

Pre-HIPAA

Nebraska

Vredeveld v. Clark, 504 N.W.2d 292, 300 (Neb. 1993)

Pre-HIPAA

33–23

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

STATE

New York (N.Y. courts are split on postHIPAA authority to allow ex parte contacts)

Nevada

New Jersey

33–24

PRECEDENT / STATUTE

NOTES

Arons v. Jutkowitz, 2007 NY Slip Op 9309 (N.Y. 2007)

Defendant’s counsel required to obtain a valid HIPAA authorization or a court or administrative order; or must issue a subpoena, discovery request or other lawful process with satisfactory assurances relating to either notification or a qualified protective order.

Stewart v. Women in Cmty. Serv., 1998 U.S. Dist. LEXIS 17741 (D. Nev. Sept. 11, 1998) Stempler v. Speidell, 100 N.J. 368 (N.J. 1985)

PRE/POST HIPAA Post-HIPAA (Court discusses HIPAA “Privacy Rule” at length, finding no conflict with state statutes.)

Post-HIPAA (enactment) Pre-HIPAA (compliance)

Defendant’s counsel required to “provide the physician with a description of the anticipated scope of the interview, and communicate with unmistakable clarity the fact that the physician’s participation in an ex parte interview is voluntary.”

Pre-HIPAA

MASS TORT LITIGATION/CONSOLIDATED CASES

STATE

PRECEDENT / STATUTE

Oklahoma

Holmes v. Nightingale, 2007 OK 15 (Okla. 2007)

NOTES

Judicial authority cannot facilitate or impede ex parte contact.

PRE/POST HIPAA Post-HIPAA (Court finds no HIPAA conflict)

Physician can not be compelled to submit to ex parte contact. Oregon

Booth v. Tektronix, Inc., 312 Ore. 463 (Or. 1991)

Pre-HIPAA

Pennsylvania

MacDonald v. US, 767 F. Supp. 1295 (M.D. Pa. 1991)

Pre-HIPAA

South Carolina

Felder v. Wyman, 139 F.R.D. 85 (D.S.C. 1991)

Pre-HIPAA

Texas

De Jesus Rios v. Texas Dep’t of Mental Health & Mental Retardation, 58 S.W.3d 167 (Tex. App. San Antonio 2001); Tex. R. Evid. 509(e)(4)

Post-HIPAA

Keplinger v. Va. Elec. & Power Co., 537 S.E.2d 632 (W. Va. 2000)

Post-HIPAA

West Virginia

(HIPAA not mentioned in ruling)

(HIPAA not mentioned in ruling)

33–25

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

STATE

PRECEDENT / STATUTE

Wisconsin

Steinberg v. Jensen, 194 Wis. 2d 439 (Wis. 1995)

33–26

NOTES

Defendant attorney should (1) inform the physician she may decline ex parte contact, (2) warn that conversation must be limited to nonconfidential matters, (3) instruct physician not to disclose info she believes might possibly be confidential, and (4) take all steps reasonably practicable to ensure conversation does not stray into discussion of confidential information.

PRE/POST HIPAA Pre-HIPAA

Table of Cases References are to section numbers of this book, unless otherwise indicated.

A A.I. Credit Corp. v. Legion Ins. Co., 17.5 Acosta v. Tenneco Oil Co., 19.2.10 Adams v. Dell, 25.3.2 Ageloff v. Noranda, 22.7 “Agent Orange” Prod. Liab. Litig., In re, 9.5.4 A & H Sportswear Co. v. Victoria’s Secret Stores, Inc., 24.4.2(a) Ajaxo Inc. v. Bank of Am. Tech. & Operations, Inc., 24.4.2(b) Alderstein v. South Nassau Cmtys. Hosp., 19.2.8(d) Alexander v. FBI, 9.5.1 Al-Jundi v. Rockefeller, 20.3.1(d), 20.3.1(h) Allegheny County v. Golf Resort, 24.6.2 Allstate Ins. Co. v. Creative Env’t Corp., 8.3.3, 8.4.2, 8.4.5 Allstate Ins. Co. v. Russo, 2.3.1 Alsip v. Johnson City Med. Ctr., Exhibit 33C Alvarado v. Dillon, 32.2.3(b) Amaral v. Rhode Island Hosp. Trust Nat’l Bank, 9.5.5 American Auto. Ass’n v. AAA Legal Clinic of Jefferson Crooke, P.C., 20.5.2(b) American Nat’l Red Cross v. Travelers Indem. Co. of R.I., 17.4.4 Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 17.3.5(a)

Amgen, Inc. v. Hoechst Marion Roussel, Inc., 9.5.2, 9.7.2, 22.5.3 Anderson v. Breda, 9.3.3 Anderson v. Crossroads Capital Partners, LLC, 25.3.2 Anderson v. Cryovac, Inc., 9.5.4, 9.6.2 Anderson v. Providence Police Dep’t, 6.1.3(d) Andrews v. Holloway, 24.4.2(a) Andrews v. Masse, 16.2.3(c) Another Step Forward v. State Farm Mut. Auto Ins. Co., 2.2.3(b) Anson v. Fickel, 19.2.3, 19.2.5 Antonelli, In the Matter of, 28.2 Application of, see name of party Aranson v. Schroeder, 2.3.1 Armstrong v. Executive Office of the President, 25.4.2 Arnold v. Lebel, 29.4 Aronoff, United States v., 5.4.2(f) Arons v. Jutkowitz, Exhibit 33C Asea, Inc. v. Southern Pac. Transp. Co., 20.3.1(c), 20.3.1(d) Asermely v. Allstate Ins. Co., 10.3.2(g) Atturio v. Evora, 28.2 Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., 24.3.3(a) Automobile Refinishing Paint Antitrust Litig., In re, 23.3.1 Avantel, In re, 22.2.4 Avery Dennison Corp. v. Four Pillars, 9.5.3

C–1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

B Baird v. Quality Foods, Inc., 19.2.7 Bank of Am. v. Touche Ross & Co., 22.2.1 Bank of New Eng., United States v., 5.2.1 Banks v. Office of the Senate Sergeant at Arms, 24.4.2(b) Barham v. I.D.M. Corp., 15.2.2 Barles v. Charette, 2.3.11 Barnes v. Beattie, Exhibit 33C Barnes, State v., 5.4.3(e), 8.1 Baron Fin. Corp. v. Natazon, 24.3.2(a) Bartlett v. John Hancock Mut. Life Ins. Co., 22.10.1 Bashforth v. Zampini, 9.5.5 Bay State Ambulance & Hosp. Rental Serv., United States v., 22.7 Baycol Prods. Litig., In re, Exhibit 33C Bayer & Miles, Inc. v. Barr Labs., Inc., 9.6.2 BCF Oil Ref., Inc. v. Consolidated Edison Co. of N.Y., Inc., 14.3.1, 14.3.3 Beard Research v. Michael J. Kates, ASDI, Inc., 25.3.2 Bendick v. Picillo, 9.5.5 Bernard v. Vose, 6.1.3(d) Bethel v. Dixie Homecrafters, Inc., 19.2.3 Billmyer, United States v., 5.2.3 Biron v. Falardeau, 2.3.13 Blount v. Wake Elec. Membership Corp., 19.2.7 Blue Coast, Inc. v. Suarez Corp. Indus., 26.5, 32.2.1(a) Board of Trustees of Leland Stanford Junior Univ. v. Tyco Int’l Ltd., 17.3.4 Bockweg v. Anderson, 14.4.5 C–2

Bogosian v. Gulf Oil Corp., 14.3.2 Booth v. Tektronix, Exhibit 33C Borello v. Barry Hyman Co., 26.14 Boring v. Keller, 14.3.2 Borland v. Dunn, 24.2, 24.6.1 Boscia v. Sharples, 2.2.3(a), 16.2.3(c), 16.3.2 Bosler v. Sugarman, 24.4.2(b) Bottorff v. Bethlehem Steel Corp., 14.4.5 Bowden v. Rhode Island Dep’t of Envtl. Mgmt., 6.1.3(d) Bowen v. Parking Auth. of City of Camden, 19.2.1, 19.2.2 Brandt v. Pelican, Exhibit 33C Bridges v. Eastman Kodak Co., 19.2.2 Brokaw v. Davol, Inc., 5.4.2(e), 17.3.3(b), 22.8, 33.7 Brook Vill. N. Assocs. v. General Elec. Co., 20.5.2(a), 20.5.2(b) Brown v. Amaral, 30.7.1 Buja v. Morningstar, 14.4.1 Burns v. City of Providence Assessor’s Office, 6.2.1 Burns v. Connecticut Mut. Life Ins. Co., 24.4.2(b) Burns v. Department of Ed. Coventry Sch. Dist., 6.1.3(d) Burns v. Imagine Films Entm’t, 9.5.1 Butera v. Boucher, 2.3.13 Butler-Tulio v. Scroggins, Exhibit 33C Buzz Off Insect Shield, LLC v. S.C. Johnson & Son, Inc., 24.4.3 Byrnes v. Empire Blue Cross Blue Shield, 5.4.1(g)

C Cabana v. Forcier, 14.4.1, 19.2.10 Cabral v. Arruda, 5.4.2(c), 9.2.3, 10.4.2(b), 11.2.6(c), 22.8, 22.9 The Cadle Co. v. Valdez, 24.4.2(b)

TABLE OF CASES

Cadrin v. Trans Spec Truck Serv., Inc., 9.5.1 Cahill v. Gagnon, 8.2, 8.3.5 Cahill v. Housing Auth. of the City of Pawtucket, 6.1.3(d) Cain v. Back, Exhibit 33C Callahan v. Nystedt, 2.3.1, 9.2.2, 22.1, 22.2.1 Calzaturficio S.C.A.R.P.A. S.P.A. v. Fabiano Shoe, 2.3.5, 17.3.3(a), 17.3.4 Campana v. Board of Dirs. of Mass. Hous. Fin. Agency, 20.7 Campbell v. Eastland, 9.3.5 Campos v. MTD Prods., Inc., 26.7 Canal Barge Co. v. Commonwealth Edison Co., 17.4.4 Canavan v. City of Central Falls, 6.1.3(b) Cannone v. New Eng. Tel. & Tel. Co., 20.6.2 Capellupo v. FMC Corp., 5.4.3(e), 25.3.1(a) Card Tech. Corp. v. DataCard Inc., 24.4.2(b) Cardenas v. Dorel Juvenile Group, Inc., 24.3.3(a) Cardi Corp. v. State, 2.3.11, 20.1, 20.3, 20.3.1, 20.3.1(c), 20.3.1(f), 20.4.2, 20.5.2(a) Cardinal v. University of Rochester, 19.2.8(a), 19.2.8(d) Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 9.3.5 Carlson v. Withers, 20.6.1 Carlucci v. Piper Aircraft Corp., 5.4.3(e) Carnes v. Crete Carrier Corp., 24.3.3(a) Carney, In re, 24.4.3 Caron v. General Motors Corp., 20.2.1, 20.4.2

Carotenuto v. Emerson Elec. Co., 15.3.2 Carrellas v. Portsmouth Police Dep’t, 6.2.1 Carroccio v. DeRobbio, 13.7.3, 24.4.2(b), 32.3.1 Carroll v. Tiverton Budget Comm., 6.2.1 Carson v. Burlington N. Inc., 15.3.2 Caruthers v. Procter & Gamble Mfg. Co., 24.4.3 Casey v. Johnston Police Dep’t, 6.1.3(d) Cassidy, In re, 20.6.4 Castellucci v. Battista, 10.4.5, 24.4.2(b) Cavallaro v. United States, 18.1.5(c), 22.7 Central Bank of Denver v. First Interstate Bank of Denver, 18.1.2, 18.1.3(c) Central Soya Co. v. Henderson, R.I., 16.3.1 Century-ML Cable Corp. v. Carrillo, 25.3.2 Champlin’s Realty Assocs. v. Tikoian, 29.4 Chao v. Oriental Forest IV, Inc., 24.4.2(b) Chevron Texaco Corp., United States v., 22.2.2 Church’s Fried Chicken No. 1040 v. Hanson, Exhibit 33C Cianci v. Rhode Island Ethics Comm’n, 6.1.3(d) Cianci, State v., 6.1.3(b), 9.5.7 Cianci, Inc. v. Logan, 3.3.2 Cipriani v. Migliori, 9.5.1, 24.3.3(a) City of, see name of city Ciunci v. Logan, 2.3.5, 13.7.3 Clark v. Morsilli, 1.6 Clement v. Merchants Nat’l Bank of Mobile, 19.2.8(d) C–3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Clifford McFarland Read & Lundy, Inc. v. Brier, 18.1.5(c) Cline v. Firestone Tire & Rubber, 19.2.10 Coburn v. Seda, 9.3.3 Cody v. Marriott Corp., 19.2.2 Coffey v. James H. McManus Shoppes of Am., Inc., 2.3.5, 15.2.1 Colonial Times, Inc. v. Gasch, 15.2.2 Colvin v. Lekas, 9.2.3, 9.5.5, 24.6.2 Command Transp., Inc. v. Y.S. Line (USA) Corp., 5.4.2(d) Commodity Futures Trading Comm’n v. Noble Metals Int’l, Inc., 24.4.2(b) Commonwealth v., see name of opposing party Computer Assocs. Int’l, Inc. v. Am. Fundware, Inc., 25.3.1(a) Condella v. Cumberland Farms, Inc., 15.2.1(a) Conley v. Town of W. Greenwich, 6.2.1 Conlon v. United States, 24.5.9 Consolidation Coal Co. v. BucyrusErie Co., 10.4.2(b), 20.3.1(f) Construction Prods. Research, Inc., United States v., 9.5.3 Cooper, State v., 16.3.1 Corey v. Norman, Hanson & DeTroy, 9.7.2 Corvello v. New Eng. Natural Gas Co., 9.5.2, 9.5.3, 9.7.2 Corvese v. Medco Containment Servs., 11.3.3(a) Costanza v. Monty, 19.2.7 Cotracom Commodity Trading Co. v. Seaboard Corp., 24.3.3(a) Couch v. United States, 18.1.5(c) Coulter v. Town of Cumberland, 6.2.1

C–4

County of Suffolk v. Long Island Lighting Co., 14.3.1, 14.3.3, 14.4.5 Cranston United Taxpayers v. City of Cranston, 6.1.3(d) Croft, United States v., 16.3.2 Crowe Countryside Realty Assocs. Co. v. Novare Eng’rs, Inc., 1.6, 2.3.1, 5.4.2(b), 5.4.2(c), 10.3.2(e), 14.3.1, 14.3.2, 14.3.3, 14.5.1, 17.2.2, 22.8, 22.10.2, 24.3.1, 24.6.1, 26.3, 26.15, 32.2.3(c) Cuddy v. Schiavonne, 2.2.3(a), 16.2.3(c) Cunningham v. Connecticut Mut. Life Ins., 19.2.11 Cunningham v. Heard, 13.7.8(c), 24.3.2(b)

D Dahl v. Bain Capital Partners, 8.4.6 D’Amario v. State, 9.5.3, 10.4.1(b), 11.3.1, 22.8, 22.10.2 D’Amario v. Town of Smithfield, 6.2.2 Danis v. USN Communications, 25.3.1(b) Dasilva v. Gagliardo, 19.2.10 Daubert v. Merrell Dow Pharms., Inc., 7.4.1(a), 14.4.2, 14.4.6, 26.4 Davis v. City of New Bern, Exhibit 33C Davis v. Sweeney, 32.2.3(b) De Jesus Rio v. Texas Dep’t of Mental Health & Mental Retardation, Exhibit 33C Debar v. Women & Infants Hosp., 14.4.1, 26.3, 32.4.2 DeBiasio v. Gervais Elecs. Corp., 1.4 DeCarvalho v. Gonsalves, 24.2 DeCristofano v. Town of N. Smithfield, 6.2.1 Defusco v. Giorgio, 9.3.5

TABLE OF CASES

Dellefratte v. Estate of Dellefratte, 1.2 Demers v. Demers, 20.2.1, 20.3.1(e) Department of Labor & Training v. Rhode Island Labor Relations Bd., 29.3.2 Department of Transp., State ex rel v. Moore, 32.2.3(b) DEPCO v. Mapleroot, 14.1.4 Diaz v. Tiverton Town Clerk, 6.2.2 DiBiasio v. Browne Sharpe Mfg., 5.4.2(b) Dick Cranston Ford Sales, Inc. v. Rhode Island Motor Vehicle Dealers’ License Comm’n, 29.4 DiDonato v. Kennedy, 30.7.3 Diederich v. Department of Army, 20.3.1(d) Dietz v. Board of Registration for Prof’l Land Surveyors, 6.3 Dimm v. Zeringue, 32.2.3(b) DiPetrillo v. Dow Chem. Co., 14.4.2, 14.4.6, 18.2.2(b), 26.4, 26.11 DiPrete, State v., 22.8 Direct Action for Rights & Equality v. Gannon, 6.1.3(d) Dismore v. Suadron, Ellenoff, Plesent, Sheinfeld & Sorkin, 18.1.3(c) Diversified Indus., Inc. v. Meredith, 5.4.5 Division of Motor Vehicles, In re, 6.1.3(d) Doe v. Provident Life & Accident Ins. Co., 19.2.6 Doe v. Senechal, 19.2.5 Doe v. Yorkville Plaza Assocs., 17.3.5(a) Doe, In re, 16.2.1 Donegan v. Jackson, 9.5.1, 9.5.3 Dorf & Stanton Communications, Inc. v. Molson Breweries, 9.5.3

Douglas v. Town of Westerly, 6.1.3(d) Driscoll, State v., 22.3, 22.5.1 Dulansky v. Iowa-Ill. Gas & Elec. Co., 20.3.1(e) Dunning v. United Parcel Serv., 24.5.9 Duquette v. Superior Court, Exhibit 33C

E Eagle-Picher Indus., Inc., In re, 24.6.2 Eckman v. University of R.I., 19.2.5 Eckmyre v. Lambert, 19.2.7 Edmund J. Flynn Co. v. LaVay, 22.5.1 Egbert, In re, 4.3.5 Ehrenhaus v. Reynolds, 24.4.2(b) Eleazer v. Ted Reed Thermal, Inc., 2.3.8, 10.2.5, 32.2.1 Electrical Workers Pension Trust Fund of Local Union # 58, IBEW v. Gary’s Elec. Serv. Co., 24.4.2(b) Elm Grove Coal Co. v. Director, Office of Workers’ Comp. Programs, 26.15 Emergency 911 Unif. Tel. Sys., In re, 6.1.3(d) Employer’s Fire Ins. Co. v. Beals, 2.3.1 Enron Corp. Sec. Litig., In re, 5.2.3 Essex Bldrs. Group, Inc. v. Amerisure Ins. Co., 24.5.9

F F.P., In re, 7.6 Fairfield Fin. Mortgage Group v. Luca, 24.4.2(b) Farr Man & Co. v. M/V Rozita, 20.5.2(a)

C–5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Farrell v. Connetti Trailer Sales, Inc., 8.1, 8.3.1, 8.3.3, 8.3.4, 8.4.4, 26.3, 26.14 Favale v. Roman Catholic Diocese of Bridgeport, 19.2.10, 24.3.1 Fayle v. Traudt, 24.6.1 FCC v. Mizuho Medy Co., 17.3.4 FDIC v. Marine Midland Realty Credit Corp., 22.5.3 Felder v. Wyman, Exhibit 33C Felix v. Balkin, 5.4.1(c) Ferko v. National Ass’n for Stock Car Auto Racing, Inc., 24.3.2(a) Fiber Optic Designs, Inc. v. New Eng. Pottery, 32.2.3(b) Fine v. Facet Aerospace Prods., 5.4.1(b) Finnegan v. Town of Scituate, 6.2.1 Fireman’s Fund Ins. Co. v. McAlpine, 2.3.1, 5.4.2(c), 9.3.5, 11.2.5, 22.2.4, 22.8, 22.10.2, 24.2, 25.1.2 First Am. Corp. v. Price Waterhouse LLP, 23.3.1 1st Tech., LLC v. Rational Enters. Ltd., 24.4.2(a) Fjelstad v. American Honda Motor Co., 24.4.2(b) Flanagan v. Blair, 1.7, 24.4.2(b), 24.6.2 Flanagan v. Wesselhoeft, 13.9, 32.4.2 Flanagan v. Wyndham Int’l, Inc., 24.3.2(a) Fleet Nat’l Bank v. Tonneson & Co., 18.1.5(c) Flora v. Hamilton, 9.5.1 Foley v. St. Joseph’s Health Servs., 14.4.6, 32.4.2 Fondedile, S.A. v. C.E. Maguire, Inc., 16.3.2 Fontaine v. Ebtec Corp., 15.3.1 Ford Motor Co., In re, 25.4.3(b)

C–6

Foreclosure Mgmt. Co. v. Asset Mgmt. Holdings, 17.3.5(a) Francis v. Barber Auto Sales, Inc., 10.2.5 Franco v. Kaufman & Broad, Inc., 2.2.3(a) Franco v. Latina, 26.13 Franks, United States v., 16.3.2 Frechette v. Welch, 15.3.1 Freeland v. Amigo, 24.4.2(b) Fremming v. Tansey, 2.2.1(b), 24.4.4 Fujitsu Ltd. v. Federal Express Corp., 25.3.1(a)

G Gail v. New Eng. Gas Co., 22.5.3 Gale v. National Transp. Co., 19.2.8(c) Gallucci v. Humbyrd, 26.8, 26.12 Garden City Boxing Club, Inc. v. Izarraraz, 24.4.2(b) Gates Rubber Co. v. Bando Chem. Indus., 25.4.2 Gaumond v. Trinity Repertory Co., 5.4.2(e), 10.4.2, 10.4.2(b), 20.3.1(f), 22.2.1, 22.8 General Elec. Co. v. Paul Forsell & Son, Inc., 2.3.11, 20.1, 20.4.3, 20.5.2(a) General Ins. Co. of Am. v. Eastern Consol. Utils., Inc., 24.4.2(a) Gensbauer v. May Dep’t Stores Co., 19.2.10 George v. Eaton, 2.2.3(b) Gepner v. Fujicolor Processing Inc., 19.2.3 Gerstein v. Scotti, 2.2.3(a), 14.1.3, 16.2.3(c), 26.7 Gibbons v. Rhode Island Co., 14.2.1 Gilbert v. Travelers Indem. Co., 24.6.1 Gillen v. Nissan Motors Corp., 15.2.2 Giuliano v. Pastina, 24.6.2

TABLE OF CASES

Goldman, Commonwealth v., 5.4.2(d) Gonzalez, State v., 8.3.7 Gormally v. MHRH, 6.1.3(d) Gorman v. Coventry Fire Dist., 6.2.2 Gorman v. Tiogue Fire Dist., 6.1.3(d) Gormley v. Vartian, 2.3.8, 24.4.2(b) Goulet v. Office Max, Inc., 1.7 Grabbert v. Marina Parks, Inc., 16.3.1 Graham v. Casey’s Gen. Stores, 24.3.3(a) Grand Jury Subpoena, In re, 9.5.3 Grand Jury Subpoena Duces Tecum Served on Allied Auto Sales, Inc., In re, 16.3.1 Gray v. Derderian, 17.3.5(b) Grayhurst, State v., 22.5.1, 22.5.2 Graziano v. Department of Admin., 6.1.3(d) Graziano v. Rhode Island Auditor Gen., 6.1.3(d), 6.2.1 Graziano v. Rhode Island Bd. of Nurse Reg. & Nursing Ed., 6.1.3(d) Graziano v. Rhode Island Lottery Comm’n, 6.1.3(d) Green v. Bloodsworth, Exhibit 33C Greenfield Hills Invs., LLC v. Miller, 2.3.12 Greenhorn v. Marriot Int’l, Inc., 19.2.2 Greenville Pub. Library, In re, 6.1.3(d) G-69 v. Degnan, 9.5.1 GTFM, Inc. v. Wal-Mart Stores, Inc., 25.3.1(b), 25.3.2 Gutierrez v. AT&T Broadband, LLC, 17.3.3(a) Gutierrez v. Massachusetts Bay Transp. Auth., 20.6.5 Guzhagin v. State Farm Mut. Auto. Ins. Co., 9.5.5

H Haack, United States v., 24.6.2 Hadley v. United States, 24.5.9 Haley v. Town of Lincoln, 1.2 Hall v. Flowers, Exhibit 33C Halpert v. Rosenthal, 10.5 Hampton v. Schimpff, Exhibit 33C Hanna v. Plumer, 26.15 Hannah v. Larche, 28.2 Hareld v. Napolitano, 2.2.5(b) Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 24.4.3 Harper & Row Publishers, Inc. v. Decker, 5.4.2(d) Harris v. Oil Reclaiming Co., 20.3.1(c) Hart, United States v., 5.4.4(e) Harvard Apparatus, Inc. v. Cowen, 9.4 Havenfield Corp. v. H & R Block, Inc., 20.2.3 Haymes v. Smith, 5.4.2(b) Hearn v. Rhay, 5.4.2(f) Hegarty v. Swider, 15.2.1(a) Henderson v. Newport County Reg’l YMCA, 1.6, 2.3.1, 5.4.2(c), 12.1.6, 22.8, 22.9, 24.3.1 Henley v. South Kingstown Sch. Dist., 6.1.3(d) Henry v. Gill Indus., 24.4.2(b) Herrera v. Scully, 20.3.1(d) Hertenstein v. Kimberly Home Health Care, Inc., 19.2.10 Hickman v. Taylor, 1.6, 9.2.1, 9.2.3, 22.8 Hilao v. Estate of Marcos, 24.4.2(b) Hi-Plains Elevator Mach., Inc. v. Missouri Cereal Processors, Inc., 17.3.5(a) Hodge v. Osteopathic Gen. Hosp., 10.4.1(a), 10.4.1(b) Holland v. United States, 19.2.10 C–7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Holmes v. Nightingale, Exhibit 33C Honza, In re, 25.4.3(b) Hooper v. Koslow, 14.1.3 Horace Mann Ins. Co. v. Nationwide Mut. Ins. Co., 24.3.3(c) Horne v. Patton, Exhibit 33C House v. Giant of Md. LLC, 24.4.3 Howard v. Rhode Island Estate Tax Div., 6.1.3(d) Howley v. Whipple, 25.1.1 Hudson v. Napolitano, 16.2.3(c) Hughes v. Groves, 19.2.5 Hydraflow, Inc. v. Enidine, Inc., 22.5.3 Hydron Labs., Inc. v. Department of Attorney Gen., 6.1.3(d), 22.2.5 Hynix Semiconductor Inc. v. Rambus, Inc., 25.3.2

I Ierardi v. Lorrilard, Inc., 17.5 In the Matter of, see name of party Industrial Hard Chrome, Ltd. v. Hetran, Inc., 17.5 Industrial Nat’l Bank v. Patriarca, 20.5.1 Information Ctr., Inc. v. Spina, 6.1.3(b), 6.1.3(d) Insurance Co. of N. Am. v. KayserRoth Corp., 24.3.3(a), 24.4.2(b) International Depository, Inc. v. State, 2.3.8, 24.4.2(b) International Digital Sys. Corp. v. Digital Equip. Corp., 9.7.2 International Tel. & Tel. Corp. v. United Tel. Co. of Fla., 22.5.1 Irvine v. Inn at Castle Hill, Inc., 22.8

J J.P. Morgan Chase Bank v. Liberty Mut. Ins. Co., 17.4.4 J.T. Healy & Son v. James A. Murphy & Son, 9.3.1, 9.4 C–8

Jackson, United States v., 7.6 Jameson v. Hawthorne, 16.2.3(c) Jepson, Inc. v. Makita Elec. Works, 9.6.2 Jet Spray Cooler, Inc. v. Crampton, 9.3.1 Johnson v. Kraft Foods N. Am., Inc., 24.3.3(a) Johnson & Johnson, Application of, 24.4.2(a) Johnson Int’l Co. v. Jackson Nat’l Life Ins. Co., 20.3.1(d) Johnston Police Dep’t, In re, 6.1.3(d) Johnstone v. Cronlund, 20.2.3 Jones v. Louisiana State Bar Ass’n, 24.4.2(a) Jordan v. Court of Appeals for the Fourth Supreme Judicial Dist., 9.3.3 Josephs v. Harris Corp., 9.5.1, 24.3.3(a) Juarez, State v., 5.4.2(f)

K Kalis v. Colgate-Palmolive Co., 17.3.5(a) Kallen v. Nexus Corp., 15.2.2 Karlovetz v. Baker, 19.3 Kearley v. State of Mississippi, 7.6 Keene v. Brigham & Women’s Hosp., 8.3.1, 8.3.4 Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), In re, 9.5.2 Kelley v. K&H Realty Trust, 2.3.11, 20.5.2(a), 24.5.9 Kelley, United States v., 22.2.1 Kelly/Narragansett Times v. South Kingstown Sch. Dep’t, 6.1.3(d) Kelvey v. Coughlin, 2.3.5, 9.2.3, 9.5.5, 13.7.8(e), 14.5.3, 17.4.2(a), 22.2.1, 26.10, 29.4

TABLE OF CASES

Kendall Square Sec. Litig., In re, 18.1.3(c) Kenealy, United States v., 20.3.1(e) Keplinger v. Virginia Elec. & Power Co., Exhibit 33C Kern v. TXO Prod. Corp., 24.6.2 Kerry Steel, Inc. v. Paragon Indus., Inc., 24.5.9 Kevlik v. Goldstein, 5.4.2(f) Kevorkian v. Glass, 9.4 Keystone Elevator Co. v. Johnson & Wales Univ., 2.2.4 King v. Grand Chapter of R.I. Order of E. Star, 30.7.3 King v. Pratt & Whitney, 17.4.2(b) Kirios v. Arsenault, 13.7.3 Klayman v. Judicial Watch, Inc., 24.4.2(b) Klein v. Yellow Cab Co., 19.2.8(a) Kleinerman v. United States Postal Serv., 9.5.4 Knowlton v. Teltrust Phones, Inc., 24.4.2(b) Koon v. United States, 24.6.2 Kosta v. Connolly, 24.4.3 Kraemer v. Patterson, Exhibit 33C Kubik, Inc. v. Hull, 9.4 Kucala Enters. Ltd. v. Auto Wax Co., 25.3.2 Kugel Mesh Hernia Patch Prods. Liab. Litig., In re, 33.2, 33.4, 33.7, 33.10, Exhibit 33C Kumho Tire Co. v. Carmichael, 26.4 Kurczy v. St. Joseph Veteran’s Ass’n, Inc., 5.4.3(e), 8.3.5 Kutner v. Urban, 19.2.10

L L. Tarango Trucking v. County of Contra Costa, 24.4.2(b) La Petite Auberge, Inc. v. Rhode Island Comm’n for Human Rights, 28.3, 29.3.2, 29.3.5, 29.4

Lahr v. Fullbright & Jaworski, 19.2.5 Lake v. City of Phoenix, 25.4.3(b) Lakehead Pipe Line Co. v. Am. Home Assurance Co., 20.2.3, 20.4.1 Landry v. Air Line Pilots Ass’n, 24.3.2(a) Langdon v. Champion, Exhibit 33C Langfeldt-Haaland v. Saupe Enters., Inc., 19.2.10 Langley v. Providence Coll., 1.6, 2.2.1(a), 5.3.3(c), 5.4.1(b), 5.4.1(g), 5.4.2(b), 5.4.2(d), 5.4.4(b), 5.4.4(e), 9.4, 10.4.2, 10.4.2(b), 20.3.1(f), 22.2.1, 22.2.2, 22.2.3, 22.6, 22.10.1, 24.3.1 Lawrence v. Anheuser-Busch, Inc., 22.3 Lead Indus. Ass’n, State v., 17.4.4, 22.2.5, 24.4.2(a) LeFave v. Symbios, Inc., 19.2.5 Lefkowitz v. Nassau County Med. Ctr., 19.2.8(a) Legare v. Urso, 11.2.6(a) Leonard Levin Co. v. Star Jewelry Co., 30.5.2 Leo’s Gulf Liquors v. Lakhani, 22.10.1 L’Etoile v. Director of Public Works, 32.2.3(a) Levesque v. Bristol Hosp., 32.2.3(b) Levine v. Marshall, 5.4.2(d) Lewis v. Roderick, 4.3.5, 10.4.2(b), 26.3 Lewy v. Remington Arms Co., 5.4.3(e), 25.3.1(a) Limoges v. Eats Rest., 10.4.2, 24.4.4 Linnen v. A.H. Robins Co., 25.3.1(a), 25.4.2 Liu v. Striuli, 16.2.3 Lombardo v. Broadway Stores, Inc., 25.3.1(a) Long v. Howard Univ., 24.4.3 C–9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Long v. Women & Infants Hosp. of R.I., 24.3.3(a) Long Island Diagnostic Imaging v. Stony Brook Diagnostic Assocs., 25.3.2 Lorraine v. Markel, 7.6 Lugtig v. Thomas, 13.7.9 Lundwall, United States v., 25.3.2 Lynch v. Lead Indus. Ass’n, 11.2.2

M M.J. Waterman & Assocs., Inc., In re, 24.6.2 M.T. McBrian, Inc. v. Liebert Corp., 2.2.3(b) MacDonald v. United States, Exhibit 33C Mackey v. IBP, Inc., 24.3.3(a) Mague v. Town of Charlestown, 6.1.3(d) Malinowski v. Documented Vehicle Drivers Sys. Inc., 8.3.8 Malinowski v. United Parcel Serv., Inc., 8.2 Mannarino v. United States, 2.2.3(b) Manzotti v. Amica Mut. Ins. Co., 9.5.5, 24.6.1 Marcello v. Town of Scituate, 6.1.3(d) Marchand v. Mercy Med. Ctr., 20.3.1(e) Marker v. Union Fid. Life Ins. Co., 17.5 Marley v. Wool, 14.1.3 Marrier v. Division of Motor Vehicles, 6.1.3(d) Marroni v. Matey, 19.2.5 Marshall v. Medical Assocs. of R.I., 14.4.1 Martin v. Howard, 24.6.2 Martin v. Tindell, 19.2.5 Martinez v. Kurdziel, 2.2.3(a), 14.1.3, 16.2.3(c) C–10

Martino v. Ronci, 9.5.5 Marx v. Kelly, Hart, & Hallman, P.C., 9.5.2, 9.5.3 Massey v. Manitowoc Co., 19.2.8(e) Massimo v. State of Texas, 7.6 MBTA v. Deloitte & Touche, 18.1.5(c) McAdam v. Grzelczyk, 2.2.1(b) McBurney Law Servs., Inc., In re, 20.2.4, 20.5.2(a), 24.5.9 McCauley v. Purdue Pharma, L.P., Exhibit 33C McCloskey v. United Parcel Serv. Gen. Servs. Co., 19.2.7 McComb v. Jacksonville Paper Co., 2.3.13 McCormick v. Providence Sch. Dep’t, 6.1.3(d) McCulloch v. Hartford Life & Accident Ins. Co., 16.3.2 McGonagle v. Souliere, 24.4.2(b) McLain v. Taco Bell Corp., 5.4.3(e) McPartlin, United States v., 5.4.1(g) Mead v. Papa Razzi Rest., 2.2.1(b), 3.2.1, 5.4.3(e), 8.3.5, 11.2.5, 11.2.6(b) Meagher v. United States Fid. & Guar. Co., 20.3.1(c) Menard v. Blazar, 13.7.8(e), 14.5.3, 26.13, 32.2.3(a) Menzies v. Sigma Pi Alumni Ass’n of R.I., 24.6.1 Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., 5.4.2(f), 22.1, 22.5.2 Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Employees Int’l Union, 25.3.1(c) Michilin Prosperity Co. v. Fellowes Mfg. Co., 17.3.5(a) Micron Tech. Inc. v. Rambus, Inc., 25.3.2

TABLE OF CASES

Microsoft Corp., United States v., 9.5.4 Milford Power Ltd. P’ship v. New Eng. Power Co., 9.7.2 Mills v. C.H.I.L.D., Inc., 9.4 Miranda v. Rhode Island Ethics Comm’n, 6.1.3(d) Mitchell v. Hutchings, 14.4.3 Mitsui & Co. (U.S.A.) v. P.R. Water Res. Auth., 17.3.5(a) Mock v. Johnson, 2.2.3(b) Moncrief v. Fecken-Kipfel, 15.3.2 Montecalvo v. Mandarelli, 24.4.2(b) Moore v. Chertoff, 24.4.2(b) Moran v. Public Utility Comm’n, 6.1.3(d) Moran v. Rhode Island Brotherhood of Correctional Officers, 2.3.13 Moreland v. Austin, Exhibit 33C Moretta v. Moretta, 11.2.6(c) Moretti v. Lowe, 9.3.3, 10.4.2(b), 20.3.1(f) Morgan v. Scott, 15.2.1(a) Morra v. East Providence Tax Assessors, 6.1.3(d), 6.2.2 Morra v. Harrop, 26.11 Mortgage Guar. & Title Co. v. Cunha, 2.3.1, 5.4.2(f), 10.4.2(b), 22.1, 22.5.2 Mountain States Tel. & Tel. Co. v. Public Utils. Comm’n, 32.2.3(b) Muhammad, State v., 15.2.1(a) Multi-Core Inc. v. S. Water Treatment Co., 9.5.4 Mumford v. Lewiss, 1.7, 24.4.2(b) Muna Ahmed, Individually and as Administratrix of the Estate of Malek Ahmed v. St. Joseph Health Servs. of R.I., 9.4 Myles v. Women & Infants Hosp., 13.3, 24.5.1

N Narragansett Elec. Co. v. Carbone, 2.3.8, 10.4.2(b), 24.4.2(b) Narragansett Police Dep’t, In re, 6.1.3(d) National Beef Packing Co., L.P. v. S. Pac. Lines, 9.5.1 National Employment Serv. Corp. v. Liberty Mut. Ins. Co., 5.4.2(d) National Semiconductor Corp. v. Ramtron Int’l Corp., 24.4.3 National Union Elec. Corp. v. Matsushita Elec. Indus. Co., 25.4.3(b) National Union Fire Ins. Co. of Pittsburgh, PA v. Midland Bancor, Inc., 9.5.3 Neri v. Nationwide Mut. Fire Ins. Co., 2.3.8, 10.5, 14.2.2, 26.13 Neubeck v. Lundquist, Exhibit 33C New England Carpenters Health Benefits Fund v. First DataBank, Inc., 24.3.2(a) New Hampshire Ins. Co. v. Roussell, 8.3.5 New Harbor Vill., LLC v. Zoning Bd. of Review, 24.6.1 New Medico Assocs., Inc. v. Kleinhenz, 15.5 New York City Asbestos Litig., In re, 33.11 New York Nat’l Org. for Women v. Cuomo, 25.3.1(b), 25.3.2 Newport Police Dep’t, In re, 6.1.3(d), 6.2.2 Nguyen v. CNA Corp., 20.5.2(a) Nichols v. Estabrook, 15.3.1 NLRB v. Weingarten, Inc., 5.4.4(e) Nocera v. Lembo, 9.2.3 North Kingstown, Town of v. Ashley, 2.3.1, 22.9, 26.14

C–11

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

North Providence Police Dep’t, In re, 6.1.3(d) Northwest Airlines Corp., In the Matter of, 28.2 Novopharm, Ltd. v. Torpharm, Inc., 20.5.2(a) Now Courier, LLC v. Better Carrier Corp., 2.3.13, 24.4.2(a) Nuskey v. Lambright, 19.2.3 Nye v. Town of Westerly, 6.2.2, 24.6.1

O Obiajulu v. City of Rochester, 24.3.3(a) Ocello v. City of New York, 24.4.2(b) O’Connor v. Chrysler Corp., 18.1.5(c) Offer v. Rhode Island Dep’t of Ed., 6.1.3(d) Oleson v. Kmart Corp., 9.5.1, 24.3.3(a) Oliveira v. Jacobson, 14.4.5 Oliver v. Stimson Lumber Co., 8.3.8 Ondis v. Pion, 26.11, 32.2.3(a) Oppenheimer Fund, Inc. v. Sanders, 24.2 Otis Eng’g Corp. v. Trade Dev. Corp., 17.5 Ouellette v. Carde, 2.2.3(a), 16.2.3(c) Overton v. Todman & Co., CPAs, P.C., 18.1.3(c) Owens v. Silvia, 10.4.5, 14.4.4, 14.4.6, 26.4, 26.11 Owensboro Mercy Health Sys. v. Payne, 15.2.1(a)

P Palmigiano v. Garrahy, 2.3.13 Paparelli v. Prudential Ins. Co. of Am., 17.4.2(a) The Parking Co., L.P. v. Rhode Island Airport Corp., 9.3.1 C–12

Parrillo v. F.W. Woolworth Co., 2.2.3(a), 16.2.3(c) Pastore v. Samson, 5.4.2(b), 5.4.2(e), 22.2.1, 22.2.2 Pawtucket, In re City of, 6.2.2 Pawtucket Teachers Alliance Local No. 920, AFT, AFL-CIO v. Brady, 6.1.3(d) PCx Corp., In re, 20.3 Pearce v. Ollie, Exhibit 33C Pearson v. Norfolk-Southern Ry. Co., 19.2.5 Peat, Marwick, Mitchell & Co. v. West, 9.5.1 Pena v. Troup, 19.2.8(a) Pena-Crespo v. Commonwealth of Puerto Rico, 26.15 Pennar Software Corp. v. Fortune 500 Sys. Ltd., 25.3.2 Perez v. Berhanu, 24.4.2(b) Perez v. Miami-Dade County, 24.5.9 Perfect 10, Inc. v. Cybernet Ventures, Inc., 7.6 Peters v. Jim Walter Door Sales, 10.5 Peterson v. Hantman, 24.4.4 Petrillo v. Syntex Labs., Inc., Exhibit 33C Pfohl Bros. Landfill Litig., In re, 24.3.3(a) Philadelphia, City of v. Westinghouse Elec. Corp., 2.3.1, 22.2.3 Philadelphia Gear Corp. v. American Pfauter Corp., Exhibit 23F Philip Morris USA, United States v., 25.3.1(a), 25.3.2 Photon, Inc. v. Harris Intertype, Inc., 20.2.1 Picard v. Barry Pontiac-Buick, Inc., 2.2.3(a), 16.2.3(c) Pierce v. Brovig, 19.2.7 Pierce v. Underwood, 24.4.4 Plantations Legal Defense Servs. v. Grande, 2.2.2

TABLE OF CASES

Pleasant Hill Bank v. United States, 20.3.1(f) Podell v. Citicorp Diners Club, Inc., 13.7.9 Ponticelli v. Mine Safety Appliance Co., 5.4.2(b) Powers, ex rel. Dep’t of Employment Sec. v. Superior Court, 2.3.13 Pray v. New York Ballet Co., 5.3.3(c) Priceline.com Inc. Sec. Litig., In re, 24.3.3(a) Procter & Gamble Co. v. Haugen, 25.3.2 Prokosch v. Catalina Lightning, Inc., 2.3.5, 17.3.5(a) Protective Nat’l Ins. Co. v. Commonwealth Ins., 17.4.4 Providence Auto Body, Inc. v. Department of Bus. Regulation, 29.4 Providence Gas Co. v. Biltmore Hotel Operating Co., 10.3.2(a), 24.4.2(b) Providence Journal Co. v. Convention Ctr. Auth., 6.1.3(d), 11.2.1(c) Providence Journal Co. v. Kane, 6.1.3(d) Providence Journal Co. v. Sundlun, 6.1.3(d) Prybla v. City of Woonsocket, 6.1.3(d) Public Citizen v. Carlin, 25.4.3(b) Public Citizen v. Liggett Group, Inc., 9.5.4

Q Quality Aero Tech, Inc. v. Telemetrie Elektronik, 17.3.5(a) Quattrocchi, State v., 14.4.6

R R.R.K. v. S.G.P., 19.2.5

Rainey v. American Forest & Paper Ass’n, 17.5 Raiser v. Utah County, 24.5.9 Rambus, Inc. v. Infineon Techs. AG, 25.3.1(a) Rarick v. Tobin, 26.7 Raymond v. Glendale Bd. of Fire Wardens, 6.2.2 Raymond v. Raymond, 19.2, 19.3, 24.5.8 Regine v. Stipich MD, 32.2.1 Reichold Chems., Inc. v. Textron, Inc., 5.4.2(e) Reilly v. Natwest Mkts. Group, Inc., 25.3.2 Reilly v. TXU Corp., 13.7.9 Reingold v. Wet ’N Wild Nev., Inc., 25.3.1(a) Residential Funding Corp. v. DeGeorge Fin. Corp., 25.3.2 Resolution Trust Corp. v. S. Union Co., 17.3.3(a) Reyes v. Vantage S.S. Co., 20.5.2(a) Reynolds v. E & C Assocs., 30.5.2 Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 20.3.1, 20.5.1, 20.5.2(a), 20.5.2(c), 20.6.1 Rhee v. WITCO Chem. Corp., 2.2.3(b) Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, 6.4 Rhode Island Comm’n for Human Rights v. Gilchrist, 28.2 Rhode Island Depositors Economic Prot. Corp. v. Mapleroot Dev. Corp., 26.14 Rhode Island Fed’n of Teachers, AFT, AFL-CIO v. Sundlun, 6.3 Rhode Island Hosp. Trust Nat’l Bank v. E. Gen. Contractors, Inc., 5.4.3(e), 8.1, 8.3.1, 8.3.5 Rhode Island Insurers’ Insolvency Fund v. Leviton Mfg. Co., 20.5.1 C–13

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Rhode Island Republican Party v. Daluz, 29.3.2 Rhodes v. AIG Domestic Claims, Inc., 18.1.5(c) Rice v. City of Chicago, 25.3.2 Riley v. Murdock, 15.2.2 Riley v. Stone, 14.4.6 Rivera v. Kmart Corp., 9.5.3 Rizzuto v. Davidson Ladders Inc., 8.3.8 Roberts v. Homelite Div. of Textron, Inc., 15.2.2, 15.3.2 Robin v. Associated Indem. Co., 19.2.10 Robinson v. Malinoff, 6.1.3(b), 6.1.3(d) Robinson v. Ridlon, 16.2.1 Roesberg v. Johns-Manville Corp., 9.5.1 Roosevelt Hotel Ltd. P’ship v. Sweeney, Exhibit 33C Rosati v. Kuzman, 5.4.2(b), 5.4.2(f), 22.2.4, 22.3, 22.5.1, 22.6, 24.3.3(a) Rosman v. Shapiro, 5.4.4(e) Rowe v. Vaagen Bros. Lumber, Inc., Exhibit 33C Royal Surplus Lines Ins. v. Sofamor Danek Group, 22.2.4, 22.7 Russo v. Baxter Healthcare Corp., 20.3.1(f), 20.4.2, 20.7, 24.4.3

S S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 20.3.1(f), 20.6.2 S.E.C. v. Happ, 24.4.3 Sabian v. Gentle Movers, 20.3.1(c) Sacramona v. Bridgestone/Firestone, Inc., 19.2.5 St. Clair v. Johnny’s Oyster & Shrimp, Inc., 7.6

C–14

St. Paul Reins. Co. v. Commercial Fin. Corp., 9.5.1, 24.3.3(a) Samaritan Found. v. Goodfarb, 2.3.1, 5.4.2(b), 22.2.3 Samms v. District Court, Exhibit 33C Sample v. Zancanelli Mgmt. Corp., Exhibit 33C Sampson v. Marshall Brass Co., 8.1, 8.3.4 San Juan Dupont Plaza Hotel Fire Litig., In re, 17.3.3(b) Santiago, State v., 24.6.1 Sarka v. Rush-Presbyterian-St. Luke’s Med. Ctr., 19.2.8(a) Schaap v. Executive Indus., Inc., 24.3.3(a) Schlagenhauf v. Holder, 19.2, 19.2.5, 24.5.8 Schmidt v. Ashaway Fire Dist., 6.1.3(b), 6.2.1, 6.3 Schneck v. Roger Williams Hosp., 32.4.2 Schwartz v. Goldstein, Exhibit 33C Scituate, In re Town of, 6.2.2 Sealed Case, In re, 22.9 Seattle Times Co. v. Rhinehart, 9.5.4 Security Ins. Co. of Hartford v. Trustmark Ins. Co., 17.4.4 Sega Enters., Ltd. v. MAPHIA, 25.4.2 Senn v. Surgidev Corp., 10.2.9, 10.4.4, 24.4.2(b), 24.4.4, 24.6.2 Setera v. City of Providence, 6.1.3(d) Shelton v. American Motors Corp., 17.4.4 Sherrington v. Dupont, 26.7 Shiller v. Gemma, 24.6.1 Shuttert v. Coventry Town Council, 6.1.3(d) Siddiqui, United States v., 7.6 Silvestri v. General Motors Corp., 25.3.1(a)

TABLE OF CASES

Simien v. Chem. Waste Mgmt., Inc., 20.3.1(f), 20.5.2(a) Skaling v. Aetna Ins. Co., 22.10.1 Skladzien v. St. Francis Reg’l Med. Ctr., 17.3.5(a) Smith v. DeFusco, 24.4.2(b) Smith v. First Nat’l Bank of Atlanta, 24.5.9 Smith v. Johns-Manville Corp., 9.2.3, 17.2.2, 25.1.2 Smith v. Kmart Corp., 24.4.2(b) Smith v. School Reform Bd. of Trustees, 24.4.2(b) Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the S. Dist. of Iowa, 23.3.1 Sonnino v. University of Kan., 24.3.3(a) Sorensen v. Barbuto, Exhibit 33C Sorge v. Office of Attorney Gen., 24.6.2 Sousa v. Chaset, 26.9, 26.11, 32.2.3(a) Southern Union Co. v. Rhode Island Dep’t of Envt’l Mgmt., 29.4 Southland v. Rhode Island Bd. of Governors for Higher Ed., 29.4 Souza, State v., 9.3.5 Standard Chlorine v. Sinibaldi, 9.5.7 State v., see name of opposing party Steele v. True Temper Corp., 19.2.7 Steinberg v. Jensen, Exhibit 33C Stempler v. Speidell, Exhibit 33C Stevenson v. Union Pac. R.R. Co., 25.3.1(a), 25.3.2 Stewart v. Women in Cmty. Serv., Exhibit 33C Stinchcomb v. United States, 19.2.8(a) Storms v. Lowe’s Home Ctrs., Inc., 19.2.8(e)

Strauss v. Credit Lyonnais, S.A., 24.3.3(a) Street v. Hedgepath, Exhibit 33C

T T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., 20.3.1(d) Talley v. United States, 20.2.3 Tancrelle v. Friendly Ice Cream Corp., 2.2.1(b), 5.4.3(e), 8.3.2, 8.4.2, 8.4.3(b), Exhibit 8A Tank, United States v., 7.6 Tarte v. United States, 19.2.8(c), 19.2.10 Taylor v. Shaw, 17.4.4 Taylor, United States v., 2.3.5, 17.3.3(a) Telephone Credit Union of R.I. v. Fetela, 16.2.1, 16.3.1 Texaco P.R., Inc. v. Department of Consumer Affairs, 9.7 Textron Inc., United States v., 18.1.5(c), 22.2.5 The Rake v. Gorodetsky, 6.1.3(d) Thomas v. Amway, 10.5 Thomas v. Prevou, Exhibit 33C Thompson v. Glenmede Trust Co., 9.5.1 Thompson v. Thompson, 10.2.9 Tierney v. Department of Envtl. Mgmt., 6.1.3(d) Tilden-Thurber v. Farnell, 10.3.2 Tingley Sys., Inc. v. CSC Consulting, Inc., 13.7.9 Tolman v. Salt Lake County Attorney, 24.6.2 Torrest v. El Paso Elec. Co., 8.3.8 Town of, see name of town Trahan v. Trahan, 2.3.13 Travelers Ins. Co. v. Builders Res. Corp., 20.2.1, 24.4.2(b) Travelers Ins. Co. v. Hindle, 9.2.3, 9.5.5, 13.3, 24.5.1, 24.6.1, 24.6.2 C–15

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Trent Partners & Assocs., Inc. v. Digital Equip. Corp., 9.4 Triple Five of Minn., Inc. v. Simon, 24.3.3(a) Triton Constr. Co. v. Eastern Shore Elec. Servs., 25.3.2 Tulip Computers Int’l v. Dell Computer Corp., 25.3.1(c), 25.4.3(b) Turner v. Hudson Transit Lines, Inc., 5.4.3(e) Turner v. Imperial Stores, Inc., 19.2.4

U UAW v. National Caucus of Labor Comms., 15.2.2 Uniden Am. Corp. v. Ericsson Inc., 20.3.1(d) Union Mortgage Co. v. Rocheleau, 10.5 United Coal Cos. v. Powell Constr. Co., 20.2.3 United States v., see name of opposing party United States Equal Employment Opportunity Comm’n v. Caesars Entm’t, Inc., 17.4.4 University of Rhode Island, In re, 6.1.3(b), 6.5 Upjohn Co. v. United States, 2.2.1(a), 5.4.2(d), 5.4.4(e), 10.4.2(b), 22.2.1, 22.2.3 USM Corp. v. Marson Fastener Corp., 9.4

V V.E.B. Carl Zeiss, Jena v. Clark, 9.3.5 Valentine v. Equifax Info. Servs. LLC, 24.4.3 Valentino v. Gaylord Hosp., Exhibit 33C

C–16

Valley Eng’rs, Inc. v. Electrical Eng’g Co., 24.4.2(b) Van de Velde v. Coopers & Lybrand, 18.1.3(c) von Bulow, State v., 5.4.2(a), 5.4.2(b), 5.4.2(f), 22.2.1, 22.2.2, 22.5.1, 22.5.2, 22.5.3, 22.6, 22.8, 22.9 Vredeveld v. Clark, Exhibit 33C

W W.R. Grace & Co. v. Viskase Corp., 17.5 Wagner v. Dryvit Sys., Inc., 24.3.3(a) Walsh v. McCain Foods, Ltd., 20.3.1(f) Waltz v. Exxon Mobil Corp., 22.2.2, 22.2.3, 22.2.4, 22.5.2, 22.7 Ward v. City of Pawtucket Police Dep’t, 30.7.1 Warren v. Weber & Heidenthaler, Inc., 19.2.7 Washburn v. Rite Aid Corp., 16.2.3 Watchmakers of Switzerland Info. Ctr. Inc., United States v., 20.2.3 Water Street Dev., Ltd. v. J.W. Corr Agency, Inc., 20.2.3 Webb v. Dist. of Columbia, 24.4.2(b) Weiss v. Astellas Pharma, US, Inc., Exhibit 33C Weiss v. Wayes, 15.1 Welsh v. United States, 8.3.1 Westcott v. Neeman, 15.2.2 Westinghouse Elec. Corp. v. Wray Equip. Corp., 13.9.3 Westmoreland v. CBS, Inc., 15.1, 15.2.2 Whalen v. Roe, 16.2.3 White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, 25.4.3(b) Whittingham v. Amherst Coll., 18.1.5(c)

TABLE OF CASES

Wiginton v. Ellis, 25.3.2 Wilkinson v. Vesey, 26.13, 32.2.3(a) William T. Thompson Co. v. General Nutrition Corp., 8.3.4, 8.4.4, 25.3.1(b) Williamson v. Comm’r of Internal Revenue, 24.6.2 Williamson v. General Fin. Corp., 10.2.4 Willis v. Subaru of Am., Inc., 24.3.3(a) Wiltec Guam, Inc., U.S. ex rel v. Kahaluu Constr. Co., 24.4.2(b) Windsor Shirt Co. v. New Jersey Nat’l Bank, 15.2.2 Winston v. Coleman, Inc., 10.5 Womack v. Stevens Transp., Inc., 19.2.1, 19.2.3, 19.2.5

Woonsocket Call v. Smithfield Police Dep’t, 6.1.3(d) Worcester, City of v. HCA Mgmt. Co., 5.4.1(e)

Y Yancey v. Hooten, 24.3.1 Yarbrough, United States v., 24.6.2 Yurick ex rel. Yurick v. Liberty Mut. Ins. Co., 24.3.3(a)

Z Zolin, United States v., 22.2.1 Zubulake v. UBS Warburg LLC, 25.3.1(a), 25.3.1(b), 25.3.2, Exhibit 25F

C–17

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

C–18

Table of Statutes, Rules, and References References are to section numbers of this book, unless otherwise indicated.

FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, 28.1 AMERICANS WITH DISABILITIES ACT (ADA), 28.1 BANKRUPTCY CODE, 30.5.2 § 362(a), 28.2 § 523(a)(6), 28.2 CIVIL RIGHTS ACT OF 1964 Title VII, 28.1 CODE OF FEDERAL REGULATIONS (C.F.R.) 22 C.F.R. §§ 92.49–92.71, 23.3.1(a) 22 C.F.R. § 92.56, 23.3.1(a) 39 C.F.R. § 265, 16.2.2 39 C.F.R. §§ 265.1–265.7, 16.2.2 39 C.F.R. § 265.11, 16.2.2 39 C.F.R. § 265.11(3), 16.2.2 45 C.F.R. § 160.202, 21.1 45 C.F.R. § 160.203, 21.1 COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA), 5.1 FAIR HOUSING ACT TITLE VIII, 28.1 FEDERAL RULES OF CIVIL PROCEDURE (FED. R. CIV. P.) Rule 16, 8.4.6, 25.1.2

Rule 26, 2.2.3(b), 25.1.1, 25.1.2, 27.2.6 Rules 26–37, 4.1 Rule 26(a), 27.2.1 Rule 26(a)(1), 11.2.2, 27.2.1 Rule 26(a)(1)(A)(iv), 27.2.2 Rule 26(a)(2)(B), 26.15 Rule 26(a)(2)(B)(ii), 26.15 Rule 26(a)(2)(C), 26.15 Rule 26(b)(1), 17.4.2(b) Rule 26(b)(4)(A), 2.2.3(b), 26.15 Rule 26(b)(4)(B), 2.2.3(b) Rule 26(b)(4)(C), 2.2.3(b), 26.15 Rule 26(b)(5)(B), 9.7.2 Rule 26(d), 27.4 Rule 26(d)(1), 27.3.1 Rule 26(e)(1)(A), 11.2.6(b) Rule 26(e)(2), 17.5 Rule 26(f), 11.2.2, 25.4.3, 27.2.6, 27.6.1 Rule 26(g)(2)(B), 11.2.3 Rule 29, 11.2.3, 15.2 Rule 29(b), 11.2.3 Rule 30, 27.3.1, 27.3.2 Rule 30(a), 15.2.2 Rule 30(a)(2), 17.3.5(a) Rule 30(b), 15.2.2 Rule 30(b)(3), 15.2, 15.2.2 Rule 30(b)(3)(A), 15.2.2 Rule 30(b)(4), 15.2.2 Rule 30(b)(5)(A), 15.2.2 Rule 30(b)(5)(A)(i)–(iii), 15.2.2 Rule 30(b)(5)(B), 15.2.2 Rule 30(b)(6), 16.3.2

S–1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

FEDERAL RULES OF CIVIL PROCEDURE (FED. R. CIV. P.) (cont’d) Rule 30(c)(2), 17.4.2(a) Rule 30(e), 15.2.2 Rule 30(f), 15.2.2 Rule 31, 27.3.2, 27.4 Rule 32, 27.5 Rule 32(a)(3)(E), 15.3.2 Rule 32(a)(4)(E), 15.3.2 Rule 33, 25.1.2, 27.6, 27.6.4 Rule 34, 25.1.2, 27.7 Rule 34(b)(1)(C), 25.4.3(b) Rule 34(b)(2)(D), 25.4.3(b) Rule 35, 27.8 Rule 36, 20.3.1(f), 20.3.1(h), 27.9 Rule 37, 8.4.6, 11.3.3(c), 24.4.3, 25.1.2, 27.6.3, 27.10 Rule 37(b)(1), 24.4.2(a) Rule 37(b)(2)(D), 24.4.2(a) Rule 37(c)(1), 26.15 Rule 37(d), 24.4.2(b) Rule 37(e), 8.4.6 Rule 42(a), 33.2 Rule 45, 25.1.2 Rule 45(a)(1)(A), 16.2.1 Rule 45(a)(3), 16.2.1 FEDERAL RULES OF EVIDENCE (FED. R. EVID.) Rule 401, 7.6 Rule 702, 26.15 Rule 703, 26.15 Rule 705, 26.15 Rule 807, 7.6 Rule 901, 7.6 Rule 901(a), 7.6 Rule 901(b)(4), 7.6 FREEDOM OF INFORMATION ACT, 16.2.1

S–2

HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), 16.2.1, 21.1, 21.2, 21.3.1, 21.7, 33.10, Exhibit 33C INTERNAL REVENUE CODE (I.R.C.) § 7525, 22.2.5 PRIVACY ACT OF 1974, 16.2.1 PRIVATE SECURITIES LITIGATION REFORM ACT (PSLRA), 18.1.2 SARBANES-OXLEY ACT OF 2002, 5.1, 5.2.3, 18.1.2, 18.1.4(d) §§ 101–109, 5.2.3 §§ 301–303, 5.2.3 § 308, 5.2.3 § 805, 5.2.3 § 806, 5.2.3 § 903, 5.2.3 § 905, 5.2.3 § 906, 5.2.3 § 1102, 5.2.3 SECURITIES AND EXCHANGE ACT OF 1934 § 10(b), 18.1.2 UNITED STATES CODE (U.S.C.) 5 U.S.C. § 552, 3.2.2(b), 11.2.1(c), 16.2.1 § 552a, 10.3.2(a), 16.2.1 18 U.S.C. § 1348, 5.2.3 §§ 1503–1504, 5.4.4(e) § 1512, 5.2.3, 5.4.4(e) § 1513, 5.4.4(e) § 1514A, 5.2.3 § 1519, 5.2.3 § 1520, 5.2.3 28 U.S.C. § 1407, 33.2

TABLE OF STATUTES, RULES, AND REFERENCES

UNITED STATES CODE (U.S.C.) 28 U.S.C. (cont’d) § 1781, Exhibit 23F 42 U.S.C. § 1320d-2(d)(2)(B)(ii), 33.10 § 1320d et seq., 33.10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS LOCAL RULES Rule 7, 11.3.3(c) Rule 26.2(a), 11.2.2 Rule 34(b)(2), 11.3.2 Rule 37, 11.3.3(c) Rule 204, 33.4 WETLANDS PROTECTION ACT, 5.1

RHODE ISLAND ACCESS TO PUBLIC RECORDS ACT, 6.1, 16.2.1, 22.2.5, 29.3.2 ADMINISTRATIVE PROCEDURES ACT, 6.2.1, 29.2 CIVIL RIGHTS OF PEOPLE WITH DISABILITIES ACT, 28.1 CONFIDENTIALITY OF HEALTH CARE COMMUNICATIONS AND INFORMATION ACT, 9.3.2, 21.2, 21.3.1, 21.7 DISTRICT COURT RULES OF CIVIL PROCEDURE (DIST. CIV. R. P.) Rule 33(a), 10.2.1, 10.2.2 Rule 36(a), 20.2.1 Rule 36(b), 20.2.1

EQUAL RIGHTS OF BLIND AND DEAF PERSONS TO PUBLIC FACILITIES ACT, 28.1 ETHICS ADVISORY PANEL OPINIONS No. 91-74, 4.3.5 No. 93-33, 4.3.5 No. 94-81, 4.3.5 No. 96-08, 22.7 No. 96-14, 4.3.5 No. 97-14, 4.3.5 FAIR EMPLOYMENT PRACTICES ACT, 28.1 FAIR HOUSING PRACTICES ACT, 28.1 HOTEL AND PUBLIC PLACES ACT, 28.1 OPEN MEETINGS ACT, 6.1.3(d) PREVENTION AND SUPPRESSION OF CONTAGIOUS DISEASES— HIV/AIDS ACT, 28.1 PRIVACY ACT, 16.2.3 RHODE ISLAND COMMISSION FOR HUMAN RIGHTS (RICHR) RULES AND REGULATIONS 3.02, 28.9 5.01, 28.2 14, 28.3 14.01(A), 28.2 14.02, 28.3 15.01, 28.2 15.01(F), 28.2 RHODE ISLAND CONSTITUTION Article 1, § 5, 2.1 Article 4, § 6, 9.3.5

S–3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

RHODE ISLAND GENERAL LAWS (R.I. GEN. LAWS), 22.2.5 § 1-4-13, 9.3.5 § 2-7-6, 9.3.5 § 4-12-13, 9.3.5 § 5-1-5(e)(4), 16.2.1 § 5-3.1-4(i)(4), 16.2.1 § 5-3.1-23, 18.1.5(c) § 5-3.1-23(a), 18.1.5(c) § 5-8-8(a)(2)(b), 16.2.1 § 5-29-16, 9.3.5 § 5-29-20, 9.3.5 § 5-31-24, 9.3.5 § 5-34-25, 16.2.1 § 5-37.3-1, 16.2.3(a) § 5-37.3-1 et seq., 3.2.3, 9.3.5, 21.2 § 5-37.3-2, 16.2.3(a), 21.2 § 5-37.3-2(a)(1), 21.2 § 5-37.3-2(d), 21.2 § 5-37.3-3, 16.2.3(a) § 5-37.3-3(3)(ii), 16.2.3(a), 21.2 § 5-37.3-4, 16.2.3(a), 21.2, 21.3.1, 21.4, 33.10, Exhibit 21A § 5-37.3-4(b)(8)(i), 32.2.3(a) § 5-37.3-4(b)(8)(ii), 2.2.1(a), 3.2.3, 10.4.2(b), 21.4, 26.3, 33.10 § 5-37.3-4(d), 21.3.1 § 5-37.3-6, 16.2.3(b) § 5-37.3-6.1, 2.3.13, 21.5, 32.3.2 § 5-37.3-6.1(a), 16.2.3(a) § 5-37.3-6.1(b), 21.6 § 5-37.3-6.1(d), 21.6 § 5-37.3-6.3, 16.2.3(a) § 6-42-1, 9.3.1 § 7-1.2-1314, 30.5.1 § 7-1.2-1315, 30.5.1 § 7-1.2-1316, 30.5.2 § 7-1.2-1401, 2.2.2 § 7-1.2-1401(b), 2.2.2 § 7-1.2-1418, 2.2.2 § 7-1.2-1701(a), 30.5.1 § 8-2-13, 30.7.2 § 8-6-2, 1.4 S–4

§ 8-6-2(b), 1.4 § 8-6-5, 31.1.1 § 8-8-3.1, 30.7.2 § 8-10-3, 30.7.2 § 8-10-21, 6.1.3(b) Title 9, Chapter 1, 2.2.5(a) § 9-1-6, 2.2.5(a) § 9-1-13, 2.2.5(a) § 9-1-14, 2.2.5(a) § 9-1-25, 2.2.5(a) § 9-1-28.1, 6.1.1 § 9-1-28.1(a)(1), 6.1.1 § 9-1-28.1(a)(3), 6.1.1 § 9-1-36, 2.2.5(a) § 9-1-45, 2.2.4 § 9-1.1-6, 6.1.3(d) § 9-2-18, 2.2.5(c) § 9-2-18.1, 2.2.5(c) § 9-2-20, 2.2.5(c) § 9-17-1 et al., 11.2.1(b) § 9-17-2, 16.2.1 § 9-17-3, 16.2.1, 29.3.5 § 9-17-5, 16.2.1 § 9-17-5.1, 2.3.13, 16.2.2, 16.3.2 § 9-17-5.1(a), 16.2.2 § 9-17-5.1(b), 16.2.2 § 9-17-5.1(c), 16.2.2 § 9-17-13, 9.3.5 § 9-17-19, 19.2.1 § 9-17-23, 9.3.5 Title 9, Chapter 18, 13.1 § 9-18-4, 23.2.1 § 9-18-5, 2.3.4, 13.1, 13.3, 23.2.1, 23.3, 23.3.2 § 9-18-9, 2.3.4, 23.2.2, 23.3.2, Exhibits 23A, 23B § 9-18-11, 2.3.4, 23.2.2, 23.4, Exhibits 23J, 23K § 9-18-12, 2.3.2, 3.4.1(a), 13.1, 13.3, 16.2.1, 24.5.1 § 9-18-13, 2.3.2 § 9-18-14, 2.3.2 § 9-18-15, 2.3.2, 3.4.1(a)

TABLE OF STATUTES, RULES, AND REFERENCES

RHODE ISLAND GENERAL LAWS (R.I. GEN. LAWS) (cont’d) § 9-19-12, 9.3.5 § 9-19-25, 9.3.5 § 9-19-27, 2.2.3(a), 14.1.3, 16.2.3(c), 26.7 § 9-19-27(a), 16.2.3(c) § 9-19-27(d), 16.2.3(c) § 9-19-28, 2.2.3(a) § 9-19-30, 32.4.2 § 9-19-31, 4.3.4, 22.2.4, 22.10.2 § 9-19-33, 32.4.2 § 9-19-39, 2.3.13, 3.2.4, 16.2.3(b), Exhibit 16B § 9-19-39(a), 16.2.3(b) § 9-19-39(c), 16.2.3(b) § 9-19-39(e), 2.3.13, 16.2.3(b) § 9-19-39(f), 2.3.13 § 9-19-41, 32.2, 32.4.2 § 9-19.1-2, 9.3.5 § 9-28.1-1, 16.2.3 § 9-30-1 et seq., 2.3.1 § 9-30-9, 2.3.1 § 11-24-1 et seq., 28.1 § 11-37-8.5, 6.1.3(b) § 11-47-48, Exhibit 21A § 12-5.1-11, 9.3.5 § 13-8-3.1, 16.2.1 § 13.10.3, 13.10.10 § 15-8-16, 9.3.5 § 15-8-17, 9.3.5 § 16-39-8, 16.2.1 § 17-7-8, 16.2.1, 29.3.2 § 17-23-6, 9.3.5 § 19-14-2, 9.3.5 § 20-7-3, 9.3.5 § 21-28.3-3, 9.3.5 § 21-29-10, 9.3.5 § 22-6-2.1, 16.2.1 § 23-1.1-15, 9.3.5 § 23-3-23, 9.3.5 § 23-6.3-11, 28.1 § 23-6.3-12, 28.1

§ 23-17-25, 9.3.5 § 23-17.12-9(c)(4), Exhibit 21A § 24-5-14, 2.2.5(b) § 27-3-14.1, 9.3.5 § 27-6-27, 9.3.5 § 27-8.1-4, 9.3.5 § 27-10.3-1, 31.1.2 § 27-35-6, 9.3.5 § 28-5-1 et seq., 28.1 § 28-5-7(i)(v), 28.5.2 § 28-5-13(6), 28.2 § 28-5-13(7), 28.2, 29.3.5 § 28-5-13(7)(i), 28.2 § 28-5-13(7)(iii), 28.2 § 28-5-24, 2.2.4 § 28-6.4-1, 2.2.1(b) § 28-6.4-2, 2.2.1(b) § 28-20-32, 9.3.5 § 28-32-5, 9.3.5 § 28-39-19, 2.3.13, 9.3.5 § 31-26-13, 9.3.5 § 33-15-37.1, 30.7.2 § 33-15-47, Exhibit 21A § 34-13-9, 6.2.2 § 34-28-16.2, 2.2.5(c) § 34-37-1 et seq., 28.1 § 36-2-1, 13.5 § 38-2-1, 6.1.1 § 38-2-1 et seq., 29.3.2, Exhibit 6A § 38-2-2(1), 6.1.3(a) § 38-2-2(4)(i)(A)–(W), Exhibit 6B § 38-2-2(4)(i)(A)–(Y), 6.1.3(d), 11.2.1(c) § 38-2-2(4)(i)(P), 6.5, 29.3.2 § 38-2-2(4)(i)(T), 6.1.3(b) § 38-2-2(4)(ii), 6.1.3(d), Exhibit 6A § 38-2-2(d)(5), 22.2.5 § 38-2-3, 6.2.1, 11.2.1(c) § 38-2-3.1, 6.1.3(c) § 38-2-3(a), 6.2.1 § 38-2-3(c), 6.2.1 § 38-2-3(d), 6.2.1 § 38-2-3(f), 6.2.1 S–5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

RHODE ISLAND GENERAL LAWS (R.I. GEN. LAWS) (cont’d) § 38-2-3(h), 6.2.1 § 38-2-4, 6.2.2, 11.2.1(c), 29.3.2 § 38-2-6, 6.4 § 38-2-7, 29.3.2, Exhibit 6A § 38-2-7(a), 6.2.2 § 38-2-7(b), 6.2.2 § 38-2-8, 6.3, Exhibit 6B § 38-2-8(b), 3.2.2(b), 6.3 § 38-2-9, 6.3 § 38-2-10, 6.3 § 38-2-13, 6.5 § 38-2-14, 6.1.3(d) § 40-6-12, 9.3.5 § 40-9.1-1 et seq., 28.1 § 40.1-4-13, 9.3.5 § 40.1-5-18, 9.3.5 § 40.1-5-26, 9.3.5 § 40.1-24-12, 9.3.5 §§ 42-16.1-12–42-16.1-16, Exhibit 21A § 42-35-1 et seq., 29.2 § 42-35-1(2), 6.1.3(a) § 42-35-1(b), 6.1.3(a) § 42-35-2, 6.2.1 § 42-35-9, 29.2 § 42-35-10, 29.2, 29.3, 29.4 § 42-35-15, 29.4 § 42-35-15(a), 29.2 § 42-35-18(b), 29.2 § 42-72-8, 9.3.5 § 42-87-1 et seq., 28.1 § 44-11-21, 9.3.5 § 44-14-23, 9.3.5 § 44-19-30, 9.3.5 § 44-28-35, 9.3.5 § 45-15-5, 2.2.5(b) § 45-15-9, 2.2.5(b) § 45-30-5(c), 16.2.1 RHODE ISLAND RULES OF EVIDENCE Rule 101, 30.7.4 S–6

Rule 101(b)(3), 30.6, 30.7.4 Rule 104, 14.4.6 Rule 401, 9.2.2, 24.2 Rule 403, 2.2.3(a), 16.2.3(c) Rule 411, 14.4.5 Rule 501, 9.3.3, 9.3.5 Rule 611, 13.10.5 Rule 611(c), 13.7.8(b), 13.9.6(b) Rule 612, 17.3.3(b) Rule 701, 3.2.5 Rule 702, 32.2 Rule 801(c), 13.9, 16.3.2 Rule 801(d), 16.3.2 Rule 801(d)(2), 13.9.1 Rule 802, 13.9, 16.3.2 Rule 803(3), 13.9.1 Rule 803(5), 13.9.5 Rule 803(6), 16.2.3(c), 16.3.2 Rule 803(18), 32.4.2 Rule 804(b)(1), 26.12 RHODE ISLAND RULES OF PROFESSIONAL CONDUCT (R. PROF. C.), 11.2.5 Appendix I, 2.2.6, 2.2.6(a), 2.2.6(b) Rule 1.1, 3.2.1 Rule 1.3, 1.7, 4.2.1(j) Rule 1.4, 5.4.4(e), 9.2.1 Rule 1.4(c), 22.2.4 Rule 1.5, 3.2.1 Rule 1.5(a)(1), 3.2.1 Rule 1.6, 5.4.4(e), 9.2.1, 22.4, 22.7 Rules 1.7–1.10, 4.2.2(a) Rule 1.7, 4.2.2(a), 22.5.1 Rule 1.7(b), 4.2.2(a) Rule 1.9, 4.2.2(a), 22.5.1 Rule 1.13, 4.2.2(a), 5.4.4(e) Rule 1.16(b)(7), 1.7 Rule 3.1, 4.2.1(j), 20.3.1(e) Rule 3.2, 4.2.1(j), 20.3.1(e) Rule 3.3, 4.2.1(j), 20.3.1(e) Rule 3.4, 1.6, 4.2.1(j) Rule 3.4(a), 8.4.1, 25.3.2 Rule 3.4(d), 10.4.2(a), 20.3.1(e)

TABLE OF STATUTES, RULES, AND REFERENCES

RHODE ISLAND RULES OF PROFESSIONAL CONDUCT (R. PROF. C.) (cont’d) Rule 3.7, 4.4.2(a), 22.5.1 Rule 3.7(a), 22.5.1 Rule 4.1, 4.3.3 Rule 4.2, 4.3.5 Rule 4.3, 4.3.3, 4.3.5 Rule 4.3(b), 4.3.3 Rule 4.4, 4.5 Rule 9.1, 4.3.5 SUPERIOR COURT ARBITRATION RULES (SUPER. ARBITRATION R.) Rule 1(a), 31.1.1 Rule 1(b), 31.1.1 Rule 1(d), 31.1.1 Rule 3(b), 31.3 Rule 3(c), 31.3 Rule 3(f), 31.3 Rule 3(h), 31.3 SUPERIOR COURT RULES OF APPELLATE PROCEDURE (SUPER. CT. R. APP. P.) Rule 13, 24.6.1 Rule 13(a), 24.6.1 SUPERIOR COURT RULES OF CIVIL PROCEDURE (SUPER. R. CIV. P.) Rule 1, 1.3 Rule 5, 10.2.3, 10.2.7, 16.3.1 Rule 5(b), 10.2.3 Rule 5(b)(2)(D), 10.2.3, 25.1.2 Rule 5(b)(3), 25.1.2 Rule 5(d), 10.2.3, 11.2.2, 17.2.3 Rule 5(g), 32.4 Rule 6(b)(2), 1.7 Rule 6(c), 32.4 Rule 7, 24.7.2 Rule 7(b), 10.2.4 Rule 7(b)(2), 24.7.1(a)

Rule 7(b)(3), 1.7, 10.2.9, 24.4.1, 24.7.1(a), 27.6.3, 27.10 Rule 7(b)(3)(vii), 2.3.12, 24.3.2(a), 24.4.1, 24.7.1(c), 24.7.3, Exhibits 10A, 24B, 24C, 24E, 24F, 24N Rule 8(a), 1.2 Rule 9(a), 33.4 Rule 10, 10.2.4 Rule 11, 11.3.4, 20.3.1(e), 32.2.2 Rule 15, 1.7 Rule 16, 8.4.6, 17.3.5(b), 20.5.2(b), 32.4.1 Rule 26, 1.7, 2.2.3(b), 2.3.1, 9.1, 9.3.3, 10.1, 10.4.2(a), 10.4.3, 11.2.4, 11.2.6(b), 14.1.1, 14.1.4, 14.2.2, 17.2.2, 24.1, 24.2, 24.3.2(a), 24.5, 25.1.1, 25.3.1(c), 27.2.2, 29.3, 32.2.1, 32.2.3(b), 32.4.1, Exhibit 14A Rules 26–37, 1.1, 2.3, 4.1 Rule 26(a), 1.5, 11.3.4 Rule 26(a)(1), 26.15 Rule 26(a)(2), 26.15 Rule 26(a)(2)(B), 26.15 Rule 26(a)(2)(B)(v), 26.15 Rule 26(b), 2.3.9, 2.3.11, 10.1, 11.2.1(a), 11.3.3(c), 14.1.3, 19.2.5, 24.2, 24.3.1, 24.4.3, 24.5.1, 32.2.3(b) Rule 26(b)(1), 1.4, 2.3.1, 9.2.2, 9.3.5, 11.2.4, 11.2.5, 11.3.3(c), 13.2.1, 20.2.2, 22.2.4, 24.2, 24.3.1, 29.4, 32.2.3(c) Rule 26(b)(1)(i)–(iii), 11.2.4 Rule 26(b)(2), 1.4, 2.3.1, 10.3.2(g), 27.2.2, 32.2.2 Rule 26(b)(3), 1.4, 2.3.1, 4.4.2(c), 5.4.2(c), 9.3.4, 10.4.2(b), 14.3.1, 14.3.2, 22.8, 22.9, 24.2, 24.6.1, 26.3 Rule 26(b)(4), 14.1.1, 18.2.2(b), 18.2.2(c), 24.6.1, 26.2, 32.2.3(b) S–7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

SUPERIOR COURT RULES OF CIVIL PROCEDURE (SUPER. R. CIV. P.) (cont’d) Rule 26(b)(4)(A), 2.2.3(b), 2.3.1, 3.2.5, 9.3.4, 13.2.2, 14.1.3, 14.2.2, 26.5, 26.7, 32.2, 32.2.1, Exhibit 26B Rule 26(b)(4)(A)–(C), 32.2.3(a) Rule 26(b)(4)(A)(i), 10.3.2(e) Rule 26(b)(4)(B), 9.3.4, 10.3.2(e), 14.1.4, 26.14 Rule 26(b)(4)(C), 32.2.3(b) Rule 26(b)(4)(C)(i), 32.2.3(b) Rule 26(b)(5), 9.5.2, 9.5.3, 10.4.2(b), 11.3.1 Rule 26(c), 1.4, 2.3.12, 9.2.4, 9.5.4, 9.5.5, 11.2.2, 11.3.3(c), 13.2.1, 13.2.3, 13.7.8(d), 13.7.8(f), 17.3.5(b), 20.3.1(h), 24.1, 24.3.2(a), 24.3.2(b), 24.3.3(c), 24.4.4, 27.3.2, 27.3.5, 29.4, 32.2.3(c), Exhibits 9D, 24N Rule 26(c)(2), 2.3.7 Rule 26(d), 3.4.1(b), 3.4.3, 10.5 Rule 26(e), 3.4.6, 10.4.5, 11.2.6(b), 11.3.4 Rule 26(e)(1), 11.3.4 Rule 26(e)(1)(A), 3.4.6 Rule 26(e)(1)(B), 3.4.6, 11.3.4 Rule 26(e)(2), 11.3.4, 20.3.1(g) Rule 26(e)(2)(A), 3.4.6 Rule 26(e)(2)(B), 3.4.6 Rule 26(e)(3), 3.4.6, 11.2.6(b) Rule 26(e)(4), 11.3.4 Rule 26(f), 9.2.4, 11.3.1 Rule 27, 2.3.2, 3.4.1(a), 24.5.1, Exhibits 3B, 3C Rule 27(a), 13.3, 24.5.1 Rule 27(b), 2.3.2, 13.3, 24.5.1 Rule 28, 2.3.3, 13.5, 15.2.1(a), 23.2.1 Rule 28(a), 2.3.3(a), 15.2.1(a)

S–8

Rule 28(b), 2.3.3(b), 13.5, 23.2.1, 23.2.2, 23.3, 23.3.1(b), 23.3.2, 24.5.2, 32.3.3, Exhibits 23A, 23B, 23F Rule 28(b)(3), 23.2.1, 23.3.1(b) Rule 28(c), 2.3.3(b) Rule 29, 2.3.4, 13.6, 15.2.1(a), 23.3.2 Rule 30, 2.3.5, 2.3.12, 3.2.4, 16.2.1, 17.2.2, 17.2.3, 23.4, 24.4.1, 24.5.5, 26.12, 27.3.1 Rule 30(a), 16.2.1, 17.3, 33.6 Rule 30(a)(1), 2.3.5, 13.7.1, 13.7.3, 24.5.3 Rule 30(a)(2), 24.5.3 Rule 30(a)(2)(A), 17.3.5(a) Rule 30(a)(2)(B), 2.3.5, 3.4.2, Exhibit 24K Rule 30(a)(3)(E), 13.9.2 Rule 30(b), 3.3.3(b), 13.7.2, 13.9.2, 15.2, 15.2.1, 15.2.1(a), 24.3.2(b) Rule 30(b)(1), 2.3.5, 16.2.1, 17.3.4, 17.5, 24.5.3 Rule 30(b)(2), 2.3.5, 13.7.4, 15.2, 15.2.1(a), 24.5.3 Rule 30(b)(3), 3.3.3(b), 13.7.2 Rule 30(b)(4), 13.7.8(a), 15.2.1(a), 15.4.3 Rule 30(b)(5), 2.3.5, 13.7.5, 16.2.1, 23.2.1, 26.7 Rule 30(b)(6), 2.3.5, 3.2.4, 3.4.1(b), 8.2, 13.7.6, 13.9.1, 17.1, 17.2.1–17.2.3, 17.3, 17.3.1, 17.3.3(a), 17.3.3(b), 17.3.4, 17.3.5(a), 17.3.5(b), 17.4.1, 17.4.2, 17.5, 18.1.4(a), 18.1.4(c), 18.1.4(d), 18.1.5(b), 24.3.2(a), 24.4.1, 24.4.2(b), 25.4.3(a), Exhibits 3A, 17A, 17B Rule 30(b)(7), 2.3.4, 3.3.3(b), 13.7.7, 24.5.3, Exhibit 24O

TABLE OF STATUTES, RULES, AND REFERENCES

SUPERIOR COURT RULES OF CIVIL PROCEDURE (SUPER. R. CIV. P.) (cont’d) Rule 30(c), 2.3.5, 2.3.6, 13.7.8(b), 13.7.8(d), 13.7.8(e), 13.10.5, 24.5.3 Rule 30(d), 13.7.8(e), 24.3.2(b) Rule 30(d)(1), 2.3.5, 13.7.8(e), 13.10.8, 17.4.2(a), 26.10 Rule 30(d)(2), 29.4 Rule 30(d)(3), 2.3.5, 13.7.8(f), 17.4.2(a), 24.3.2(b), 24.5.3, 29.4 Rule 30(e), 2.3.5, 13.7.9 Rule 30(e)(3)(B), 13.7.8(a) Rule 30(g), 24.5.3 Rule 30(g)(1), 13.7.3 Rule 30(g)(2), 17.3.2 Rule 31, 2.3.6, 2.3.12, 24.4.1, 24.5.5, 27.4 Rule 31(a), 24.4.1, 24.4.2(b) Rule 31(a)(1), 24.5.4 Rule 31(a)(2), 24.5.4 Rule 31(a)(3), 2.3.6 Rule 31(a)(4), 2.3.6, 13.8 Rule 31(b), 2.3.6 Rule 32, 2.3.7, 3.4.1(a), 13.9, 15.2.1(a), 17.1, 24.5.5, 27.5 Rule 32(a), 10.5, 13.9 Rule 32(a)(1), 2.3.7, 13.9.5 Rule 32(a)(2), 13.9.1 Rule 32(a)(3), 13.9, 15.3.1 Rule 32(a)(3)(A)–(D), 2.3.7 Rule 32(a)(3)(E), 2.3.7, 15.2, 15.2.1(b), 15.3.2, 24.5.5, 26.12, 26.15 Rule 32(a)(4), 2.3.7, 13.9.3, 15.3.1 Rule 32(a)(5), 10.5 Rule 32(b), 13.9.1 Rule 32(c), 13.9.1 Rule 32(d), 2.3.7, 13.9.1, 15.2.1(a) Rule 32(e), 13.9.6(a) Rule 32(e)(3)(A), 13.9.6(b) Rule 32(e)(4), 24.5.5

Rule 33, 2.3.8, 2.3.12, 3.2.4, 3.4.1(b), 10.1, 10.2.7, 10.4.5, 18.2.2(c), 24.3.3(b), 24.4.1, 24.4.2(b), 27.6, 27.6.4, 32.2.2, Exhibit 10D Rule 33(a), 2.3.8, 3.4.2, 9.5.1, 10.2.1, 10.2.2, 10.2.4, 10.2.5, 10.2.6, 10.2.7, 10.4.1(a), 10.4.1(b), 10.4.2, 24.3.3(b), 24.3.3(c), 24.4.2(b), 24.5.6, 24.5.7, 33.6, Exhibit 24A Rule 33(b), 2.3.8, 10.2.5, 10.3.2(d), 10.5, 24.5.6, Exhibit 24M Rule 33(b)(4), 24.3.3(c) Rule 33(c), 2.3.8, 3.4.6, 10.4.5, 11.3.4, 24.4.2(b), 24.5.6, 26.5 Rule 33(d), 2.3.8, 10.4.4 Rule 33(f), 11.3.4 Rule 34, 1.5, 2.3.5, 2.3.9, 2.3.12, 2.3.13, 3.2.4, 3.4.2, 3.4.3, 11.1, 11.2.1(b), 11.2.2, 11.2.3, 11.2.4, 11.2.6(a), 11.2.6(b), 11.2.6(c), 11.3.3(b), 13.7.5, 16.2.1, 18.1.5(b), 24.3.3(c), 24.4.1, 24.4.2(b), 24.5.7, 25.3.1(c), 25.4.3(b), 27.7, 28.2, 32.2.2, 32.3.2, 32.3.3, Exhibit 11A Rule 34(a), 11.2.1(a), 11.2.5, 11.2.6(b) Rule 34(a)(1), 2.3.9 Rule 34(a)(2), 2.3.9 Rule 34(b), 2.3.9, 11.2.3, 11.2.6(a), 11.2.6(b), 11.3.1, 11.3.2, 11.3.3(b), 24.3.3(c), 24.4.2(b), 24.5.7, 33.6, Exhibit 24L Rule 34(c), 2.3.9, 11.2.1(b) Rule 35, 2.3.10, 2.3.12, 3.2.4, 14.3.3, 19.1, 19.2, 19.2.2, 19.2.3, 19.2.4, 19.2.5, 19.2.8(a), 19.2.9, 19.2.10, 19.2.11, 21.6, 24.5.8, 27.8 Rule 35(a), 2.3.10, 19.2.1, 19.2.6, 19.2.8(d), 19.3, 24.5.8 S–9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

SUPERIOR COURT RULES OF CIVIL PROCEDURE (SUPER. R. CIV. P.) (cont’d) Rule 35(b), 19.1, 19.2.11, 26.14 Rule 35(b)(1), 2.3.10, 24.5.8 Rule 35(b)(2), 2.3.10 Rule 35(b)(2)(A)–(C), 24.5.8 Rule 35(b)(3), 2.3.10, 19.2.11 Rule 35(c), 14.3.3 Rule 36, 2.3.11, 2.3.12, 3.2.4, 7.6, 20.1, 20.2.1, 20.3.1(c), 20.3.1(d), 20.3.1(f), 20.4.1, 20.5.2(a), 20.6.4, 20.6.5, 20.8, 24.5.9, 27.9, 28.4 Rule 36(a), 2.3.11, 3.2.4, 20.2.1, 20.3.1, 20.4.1, 20.4.2, 24.4.3, 24.5.9, Exhibit 24I Rule 36(b), 2.3.11, 20.2.1, 20.5.2(b), 20.6.4, 24.5.9 Rule 37, 1.7, 10.1, 10.2.8, 10.2.9, 10.2.10, 11.2.2, 11.2.6(b), 11.3.3(c), 24.1, 24.3.3, 24.4, 24.4.2, 24.4.2(b), 24.4.4, 24.5, 25.3.2, 27.6.3, 27.10, 32.4 Rule 37(a), 10.2.10, 11.3.1, 24.1, 24.3.3(b), 24.3.3(c), 24.4.4 Rule 37(a)(1), 24.4.1 Rule 37(a)(2), 1.6, 2.3.12, 24.1, 24.4.1, 24.4.2(b), 24.4.4, 24.7.1(a), 24.7.1(c), 32.4, Exhibits 9D, 10A, 24B, 24E Rule 37(a)(3), 24.4.1, 32.4 Rule 37(a)(4), 13.2.3, 13.7.8(f), 24.3.2(a), 24.4.4 Rule 37(a)(4)(A), 2.3.12, 24.4.1, 24.4.4, 24.7.1(a), Exhibit 24B Rule 37(a)(4)(B), 24.4.4 Rule 37(a)(4)(C), 24.4.4 Rule 37(b), 24.7.2, 32.4 Rule 37(b)(1), 24.4.2(a) Rule 37(b)(2), 8.1, 8.3.1, 8.3.4, 24.4.2(b), 24.4.4, 24.6.1, 24.6.2, 24.7.2, 25.3.2 S–10

Rule 37(b)(2)(A), 24.4.2(b), 25.3.2 Rule 37(b)(2)(A)–(C), 2.3.12 Rule 37(b)(2)(B), 24.4.2(b), 25.3.2 Rule 37(b)(2)(C), 24.4.2(b), 24.6.2, 25.3.2, Exhibits 24G, 24H, 24J Rule 37(b)(2)(D), 2.3.12, 24.4.2(b) Rule 37(c), 20.7, 24.4.3, 24.5.9, 24.7.3 Rule 37(d), 2.3.12, 24.1, 24.3.3(b), 24.3.3(c), 24.4.2(b), 24.4.4, 24.6.1, 24.7.2, Exhibits 24C, 24D, 24F, 24G, 24H, 24J Rule 41(a)(1)(i), 23.4 Rule 45, 2.3, 2.3.9, 2.3.13, 3.2.4, 9.1, 11.1, 11.2.1(b), 13.7.3, 13.7.5, 16.2.1, 16.3.1, 23.4, 24.4.2(a), 32.3.1, 32.3.2 Rule 45(1)(D), 11.2.1(b) Rule 45(a), 1.5, 3.2.4, 26.7 Rule 45(a)(1)(A), 16.2.1, 32.3.1 Rule 45(a)(1)(C), 16.2.1 Rule 45(a)(1)(E), 32.3.1 Rule 45(a)(2)(A), 9.5.6 Rule 45(a)(2)(A)–(C), 2.3.13 Rule 45(a)(2)(B), 9.5.6 Rule 45(a)(2)(C), 9.5.6 Rule 45(b)(1), 2.3.13 Rule 45(c), 11.2.1(b), 16.3.1, 32.3.1 Rule 45(c)(1), 9.5.6 Rule 45(c)(2)(A), 3.2.4 Rule 45(c)(2)(B), 2.3.13, 9.5.6, 11.2.1(b) Rule 45(c)(3)(A), 9.5.6 Rule 45(c)(3)(A)(i), 9.5.6 Rule 45(c)(3)(A)(ii), 9.5.6 Rule 45(d), 9.5.6, 11.2.1(b), 16.3.1, 32.3.1 Rule 45(d)(2), 2.3.13, 9.5.6 Rule 45(e), 2.3.13, 9.5.6, 11.2.1(b), 28.2, 32.3.1 Rule 54(b), 24.1, 24.6.1 Rule 54(c), 24.4.1 Rule 56, 11.2.2

TABLE OF STATUTES, RULES, AND REFERENCES

SUPERIOR COURT RULES OF CIVIL PROCEDURE (SUPER. R. CIV. P.) (cont’d) Rule 56(c), 1.3, 20.6.1 Rule 57, 2.3.1 Rule 58, 10.2.9, 24.4.1 Rule 65, 30.7.1, 30.7.3 Rule 66, 30.5.2 Rule 81, Exhibit 23I Rule 81(b), 10.1

CONNECTICUT Conn. Gen. Stat. § 52-146o, Exhibit 33C

SUPERIOR COURT RULES OF CRIMINAL PROCEDURE Rule 16(a)(4), 8.1 Rule 16(g)(2), 8.1 Rule 16(i), 8.3.7

ILLINOIS 210 ILCS 85/6.17, Exhibit 33C

SUPERIOR COURT RULES OF PRACTICE (SUPER. R. PRAC.) Rule 1.5, 4.2.1(j) Rule 2.5, 10.2.9 UNIFORM TRADE SECRETS ACT, 9.3.1 WORKERS’ COMPENSATION COURT RULES OF PRACTICE Rule 2.13(3), 26.7

OTHER STATES ARIZONA A.R.S. § 12-2236, Exhibit 33C ARKANSAS Ark. R. Evid. 503(d)(B), Exhibit 33C CALIFORNIA Cal. Civ. Code § 56.10, Exhibit 33C State Bar of Cal. Standing Comm. on Prof’l Responsibility and Conduct, Formal Op. 1997-149 (1997), 26.13

FLORIDA Fla. Bar Prof’l Ethics Comm. Op. 06-1, 12.2 Fla. Stat. § 456.057, Exhibit 33C GEORGIA O.C.G.A. § 24-9-40, Exhibit 33C

MAINE Op. 183 (Jan. 28, 2004), 12.2 MASSACHUSETTS M.G.L. c. 233A, § 10, 23.2.1 MINNESOTA Minn. Stat. § 595.02, Exhibit 33C MISSOURI Mo. Bar Informal Advisory Op. 980030, 12.2 NEVADA Nev. St. Bar Standing Comm. on Ethics and Prof’l Resp. Formal Op. 33 (Feb. 9, 2006), 12.2 NEW JERSEY N.J. Sup. Ct. Ethics Comm. on Prof’l Ethics Op. 701 (Apr. 10, 2006), 12.2 Rule of Court Rule 4:11-4, 23.2.2, Exhibit 23C Rule 4:14-1, Exhibit 23C PENNSYLVANIA Rules of Evidence, Rule 901, 7.6 VIRGINIA Va. Code Ann. § 8.01-399, Exhibit 33C Va. St. Bar Standing Comm. on Legal Ethics, Op. 1818, 12.2 S–11

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

INTERNATIONAL CONVENTIONS HAGUE EVIDENCE CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS, 23.3.1, Exhibits 23F, 23G Article 2, Exhibit 23F Article 3, 23.3, 23.3.1(b) Article 5, 23.3.1(b) Article 9, 23.3.1(b) Article 11, 23.3.1(b) Article 16, 23.3.1(a) Article 18, 23.3.1(a) Article 21, 23.3.1(a) Article 23, 23.3.1(b) Article 24, 23.3.1(b)

ADDITIONAL REFERENCES AND RESOURCES ABA Litigation Section Final Amendments to Civil Discovery Standards (Aug. 2004), 25.3.1(b) ABA Model Rules of Professional Conduct Rule 4.4(b), 22.5.3 American College of Trial Lawyers—Institute for the Advancement of the American Legal System, Official Final Report (2009), 25.1.1 Balabanian, “Medium v. Tedium: Video Depositions Come of Age,” 7 Litig. 25 (Fall 1980), reprinted in 328 PLI/Litig. 285 (1987), 15.2, 15.2.2, 15.4.1, 15.4.2, 15.7

S–12

Berry, “Some Current Issues on Expert Depositions and Discovery,” in Opinion and Expert Testimony in Federal and State Courts (ALI-ABA Jan. 2007), 14.3.1, 14.3.3 Black’s Law Dictionary (7th ed. 1999), 9.3, 16.2.1 Circular on Obtaining Evidence Abroad (U.S. Department of State), 23.3.1(a) Circular on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Litigation (U.S. Department of State), 23.3.1 “Demeanor Counts, But Avoid ‘PrePlanned’ Answers,” Mass. Law. Wkly., Dec. 11, 2000, 15.4.1 Easton & Romines II, “Dealing with Draft Dodgers: Automatic Production of Drafts of Expert Witness Reports,” 22 Rev. Litig. 355 (2003), 14.3.3 Ellis, Trade Secrets (Baker, Voorhis & Co. 1953), 9.4 Finman, “The Request for Admissions in Federal Civil Procedure,” 71 Yale L.J. 371 (1962), 2.3.11 “For Litigators, a Different Kind of Recession,” 31 NLJ No. 50 (Aug. 17, 2009), 25.1.1 Freedman & Bourque, “Requests for Medical Records: A Practical Guideline,” 55 R.I.B.J. 5 (Jan./Feb. 2007), 16.2.3(a) Garrity & Frieden, 2 Massachusetts Standardized Civil Practice Forms 36a-3 (Little, Brown 1986), 20.4.1

TABLE OF STATUTES, RULES, AND REFERENCES

Gramm, 30B Federal Practice & Procedure, Evid. (interim ed. 2009), 16.3.2 Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (National Conf. of Chief Justices 2006), 25.1.1 Henke & Margolis, “The Taking and Use of Video Depositions: An Update,” 17 Rev. Litig. 1 (1998), 15.2.2, 15.7 Kent & Fendrich, “Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(b)(6) and Alternative Mechanisms,” 50 Ala. L. Rev. 651 (Spring 1999), 17.3.5(a) Kent et al., Rhode Island Civil and Appellate Procedure with Commentaries, volume I, 1.4, 1.7 Kornblum & Short, “The Use of Videotape in Civil Trial Preparation and Discovery,” 23 Am. Jur. Trials 95 (1976), 15.3, 15.3.2, 15.3.4, 15.4.3, 15.5, 15.7 Licht, “Observations on Some Aspects of the Discovery Provision of the New Rules,” 1966 Rhode Island Bar Annual., 1.1 Malone, Hoffman & Bocchino, The Effective Deposition (3d ed. 2007), 13.1 Manual for Complex Litigation (Federal Judicial Center 4th ed. 2004), 33.2, Exhibit 25G Mathias, Kroeger & Schutte, “Lights, Camera, Action: Taking, Defending and Using Video Depositions” (ABA Litigation Section July 2007), 15.4.1, 15.4.4, 15.7

McCormick on Evidence (1972), 5.4.2(f) McCormick on Evidence (6th ed. 2006), 5.4.2(e) Memorandum from Deputy U.S. Attorney General Larry D. Thompson (Jan. 20, 2003), 5.2.2, 5.3.2 Moore, 4 Moore’s Federal Practice (2d ed. 1994), 2.3.5, 13.7.3 Moore, 4A Federal Practice (1978), 2.3.11 Moore, 4A Federal Practice (1984), 1.5, 20.1, 20.2.4 Moore et al., 7 Moore’s Federal Practice (Matthew Bender 3d ed. 1997), 20.3.1(d), 20.3.1(f), 20.3.1(h), 20.6.1, 20.6.3 Murray, “Videotaped Depositions: Putting Absent Witnesses in Court,” 68 A.B.A.J. 1402 (1982), 15.7 Principles of Federal Prosecution, U.S. Attorneys’ Manual (U.S. Department of Justice), 5.3.2 Prosser & Keeton, The Law of Torts, § 115 (5th ed. 1984), 5.4.2(b) Reinstatement (First) of Torts (1939), 9.3.1 Rhode Island Court Rules Annotated (2009), 2.3.12 Appendix I, Standards for Professional Conduct with the Rhode Island Judicial System, 2.2.6, 2.2.6(a), 2.2.6(b) Ristaul, International Judicial Assistance: Civil and Commercial (Int’l Law Inst. 2000), 23.3.1(b) Sackett, “Evidence Based Medicine: What It Is and What It Isn’t,” 312 Brit. Med. 71–72 (1996), 7.4.1(c) S–13

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

Schenkier, “Turning the Table: Deposing Corporations and Other Fictive Persons: Some Thoughts on Rule 30(b)(6),” 29 Litig. 20 (Winter 2003), 17.4.2(b) The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, 2d ed. (Nov. 2007), 25.2 The Sedona Principles Addressing Electronic Document Production, 2d ed. (June 2007), 25.3.2 Smith & Zobel, Rules Practice (7 Massachusetts Practice Series) (West 1975 & Supp. 2002), 20.2.3, 20.3.1(c), 20.4.2, 20.6.1 Solum & Marzen, “Truth and Uncertainty: Legal Control of the Destruction of Evidence,” 36 Emory L.J. 1085 (1987), 5.4.3(e) Swartz & Swartz, 5 Massachusetts Pleading and Practice § 36.4[2] (Matthew Bender 2000), 20.3.1(f) Teitz, Transnational Litigation (Michie 1996), 23.3.1(a), 23.3.2 “Uniform Audio-Visual Deposition Act,” 12 U.L.A. 10 (1991 Supp.), 15.2.2 “Videotape Depositions: An Analysis of Use in Civil Cases,” Comment, 9 Cumb. L. Rev. 195 (1978), 15.2.2, 15.3.5, 15.5, 15.7 Walpin & Lange, “Handling Sensitive Materials: Problems with Confidentiality Agreements,” Nat’l L.J. (July 29, 1985), 9.6.2 S–14

Webb, Dan K., Robert W. Tarun & Steven F. Molo, Corporate Internal Investigations (Law Journal Seminars Press 1993 & Supp. 2000), 5.4.1(e) Wigmore, 8 Evidence in Trials at Common Law (McNaughton rev. ed., Little, Brown 1961), 22.2.1 Winton, “Corporate Representative Depositions in Texas—Often Used But Rarely Appreciated,” 55 Baylor L. Rev. 651 (Spring 2003), 17.3.5(a), 17.5 Wolohojian & Giangrasso, “Expert Discovery and the Work Product Doctrine—Is Anything Protected?”, Boston B.J. (Mar/Apr. 2004), 14.3.1 Wright & Gold, “Federal Practice and Procedure,” Federal Rules of Evidence § 6183, 17.3.3(b) Wright & Miller, 8 Federal Practice and Procedure: Civil (West 1970), 20.3.1(d), 22.9 Wright & Miller, 8C Federal Practice and Procedure (1970), 9.5.4 Wright & Miller, 9A Federal Practice & Procedure § 2452 (Supp. 2002), 2.3.13 Wright et al., 24 Federal Practice and Procedure (1986), 22.2.2 Wright, Miller & Marcus, 8A Federal Practice and Procedure (West 2d ed. 1994), 8.3.1, 9.5.3, 20.1, 20.2.3, 20.3.1, 20.3.1(d), 20.3.1(g), 24.3.2(a) Wright, Miller & Marcus, 8A Federal Practice and Procedure (West 2000), 19.2.8(a) Zweifach, “Depositions Under the New Federal Rules,” 23 Litig. 6 (Winter 1997), 15.3.5

Index References are to section numbers of this book, unless otherwise indicated.

A ABUSE OF DISCRETION Appeals, standard of review, 24.6.2 Withdrawal or amendment of admissions, motions for, 20.5.2(c) ACCELERATION Investigation of claims, considerations, 2.2.5(c) ACCESS TO PUBLIC RECORDS ACT Administrative agency proceedings, 29.3.2 Applicability of, 6.1.3 Exemptions, 6.1.3(d) Generally, 6.1.2 Public body, defined Case law, 6.1.3(b) Statutory definition, 6.1.3(a) Public record, defined, 6.1.3(c) Statement of purpose, 6.1.1 ACCOUNTANTS, DEPOSITIONS OF Defendants, as, 18.1.2 Documents, role of, 18.1.4 Content and organization, 18.1.4(b) Original versus copies, 18.1.4(c) Recordkeepers versus most knowledgeable individuals, 18.1.4(a) Scope of, 18.1.4(d) Economic appraisal, checklist, Exhibit 18A

Expert witnesses Accountants as expert witnesses, 18.1.2 Preparation for using expert witnesses, 18.1.5(a) Generally, 18.1.1, 18.1.6 Preliminary issues, 18.1.3 Time period of inquiry, 18.1.3(b) Which accountants to depose, 18.1.3(a) Which engagement, 18.1.3(c) Scope of, 18.1.4(d), 18.1.5(c) Which accountants to depose, 18.1.3(a), 18.1.5(b) Witnesses, as, 18.1.2 ADMINISTRATIVE AGENCY PROCEEDINGS Access to Public Records Act, 29.3.2 Administrative Procedures Act, 29.2 Case law, 29.4 Commission for Human Rights See COMMISSION FOR HUMAN RIGHTS Discovery plans, 29.3 Agency files, obtaining, 29.3.2 Prehearing timetable, conformity with, 29.3.4 Specific discovery rules, ascertaining, 29.3.1 Subpoenas, use of, 29.3.5 Transcripts, requesting, 29.3.3 Generally, 29.1 ADMINISTRATIVE PROCEDURES ACT Administrative agency proceedings, 29.2 I–1

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

ADMISSIBILITY OF EVIDENCE Internet, evidence from, 7.6 Medical and technical experts, depositions of, 14.4.6 Spoliation of evidence, not relevant to remedies for, 8.3.2 Web sites, 7.6 ADMISSIONS See REQUESTS FOR ADMISSIONS ADOPTION OF RULES, 1.1 AFFIDAVITS Investigation of claims, budgetary considerations, 2.2.3(a) AGENCY FILES Obtaining, 29.3.2 ANESTHETICS Physical and mental examinations, use in, 19.2.8(b) APPEALS Certiorari, 24.6.1 Direct appeals, 24.6.1 Standard of review, 24.6.2 ARBITRATION Court-annexed arbitration, 31.1 Discovery, 31.3 Motor vehicle claims, 31.1.2 Personal injuries, 31.1.1 ASSIGNMENT OF CASES Business Calendar, to, 30.4 ATTORNEY FEES Investigation of claims, 2.2.4 Motions for, 24.4.4 ATTORNEY-CLIENT PRIVILEGE Breach of, 22.4 Burden of proof, 22.2.2 Corporate clients, 22.2.3 I–2

Effect of asserting, 22.6 Elements of, 22.2.1 Generally, 22.1 Government entities, 22.2.5 Internal investigations, in, 5.4.2(b) Joint defense privilege, 22.7 Nature of communications, 22.2.4 Practical considerations, 22.10 What to do when opposing party asserts, 22.10.2 When to assert, 22.10.1 Scope of, 22.2 Third parties and, 22.3 Waiver of, 22.5 Express waiver, 22.5.1 Implied waiver, 22.5.2 Inadvertent disclosure, 22.5.3 At issue waiver, 22.5.2 Work product doctrine, relationship with, 22.9 ATTORNEYS Internal investigations, role of inhouse counsel, 5.4.1(b) Internet, use in discovery by, 7.2.3 Mass tort litigation, in Appointment of, 33.3 Pro hac vice procedure, 33.4 Role of, 33.3 Medical and technical experts, depositions of, communications with, 14.2 AUDIOVISUAL DEPOSITIONS Additional resources, 15.7 Budgetary considerations, 3.3.3(b) Conduct of, 13.7.7 Digital technology and, 15.6 Expert witnesses Conduct of, 26.12 Federal discovery practice, differences in, 15.2.1(b) When to consider, 15.3.3

INDEX

AUDIOVISUAL DEPOSITIONS (cont’d) Federal discovery practice, differences in, 15.2.2 Expert witnesses, 15.2.1(b) Standard depositions, 15.2.1(a) Generally, 15.1 Practical considerations, 15.4 During deposition, 15.4.4 Mechanics of playing testimony, 15.4.5 Preparation of witness, 15.4.1 Selection of room, 15.4.2 Setting up shot, 15.4.3 Problems with, 15.5 When to consider, 15.3 Deterrence against subsequently changed testimony, 15.3.4 Expert witnesses, 15.3.3 Settlement, 15.3.5 Special demonstrations, 15.3.2 Unavailability of witnesses, 15.3.1

B “BANKER’S” BOXES AND TABS E-discovery, 12.2.8 BLOGS Discovery, use in, 7.5 BLOOD TESTS Physical and mental examinations, use in, 19.2.8(d) BUDGETARY CONSIDERATIONS Evaluation of, 3.3 Audiovisual depositions, 3.3.3(b) Expert witness fees, 3.3.3(a) Factors to consider, 3.3.2 Generally, 3.3.1 Litigation support services, 3.3.3(c) Internal investigations, 5.3.3(a)

Investigation of claims, 2.2.3 Affidavits, 2.2.3(a) Depositions, 2.2.3(c) Expert witnesses, 2.2.3(b) Medical records of own client, obtaining, 21.3.2 Physical and mental examinations, 19.2.7 BULLETIN BOARDS Discovery, use in, 7.5 BURDEN OF PROOF Attorney-client privilege, 22.2.2 BUSINESS CALENDAR Assignment of cases to, 30.4 Discovery and, 30.6 Generally, 30.1, 30.8 Historical background, 30.2 Injunctive relief, 30.7 Defined, 30.7.1 Evidentiary issues, 30.7.4 Preliminary injunctive relief, 30.7.3 Where to obtain, 30.7.2 Preliminary injunctive relief, 30.7.3 Receiverships, 30.5 Guidelines for, 30.5.2 Initiation of, 30.5.1 Types of cases that may be assigned to, 30.3 BUSINESS ENTITIES See CORPORATIONS BUSINESS RECORDS Interrogatories, responses to, 10.4.4

C CERTIORARI, 24.6.1 CHEMICAL ANALYSES Physical and mental examinations, use in, 19.2.8(d) I–3

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

CHRONOLOGIES E-discovery, 12.1.6 CIVILITY, 1.6 CLIENT INTERVIEWS Checklist, Exhibit 4A Chronological sequence, following, 4.2.1(c) Corporate clients, privilege issues, 4.2.2(b) Decision maker, evaluating client as, 4.2.1(j) Documents, discovering, 4.2.1(f) Encouraging client to tell story, 4.2.1(b) External factors, assessing, 4.2.1(k) Legal issues, identifying, 4.2.1(g) Listening, importance of, 4.2.1(a) Multiple clients, representation of, 4.2.2(a) Other players, discovering, 4.2.1(e) Pointed questions, use of, 4.2.1(d) Postinterview game plan, importance of, 4.2.1(l) Recognizing client’s need to vent, 4.2.1(h) Technology personnel, e-discovery questionnaire, Exhibit 25D Witness, evaluating client as, 4.2.1(i) CLOSE OF DISCOVERY Commission for Human Rights, 28.8 CLOSING ARGUMENTS Spoliation of evidence, reference to, 8.3.6 COMMISSION FOR HUMAN RIGHTS Adjudicatory phase of proceedings, 28.3 Close of discovery, 28.8 Depositions, 28.7 Ethical considerations, 28.9 Generally, 28.1 I–4

Interrogatories, 28.6 Employment cases, 28.6.2 Housing cases, 28.6.1 Investigatory phase of proceedings, 28.2 Requests for admissions, 28.4 Requests for production of documents, 28.5 Employment cases, 28.5.2 Housing cases, 28.5.1 COMMISSIONS Foreign countries, discovery of witnesses in, 23.3.1(a) Hague Evidence Convention, 23.3.1(a) Motions for, Exhibit 23A Orders, Exhibit 23B Other states within United States, discovery of witnesses in, 23.2.2 COMPEL, MOTIONS TO See MOTIONS COMPUTERS E-discovery See E-DISCOVERY Use in discovery See INTERNET CONFIDENTIAL OR PRIVILEGED INFORMATION Assertion of privilege, 9.5.2 Attorney-client privilege See ATTORNEY-CLIENT PRIVILEGE Corporate client interviews, privilege issues, 4.2.2(b) E-mail, Exhibit 9A Fax cover sheet, Exhibit 9B Generally, 9.1, 9.8 Inadvertent disclosure, 9.7 Effect of, 9.7.2 Prevention of, 9.7.1 Remedies for, 9.7.2

INDEX

CONFIDENTIAL OR PRIVILEGED INFORMATION (cont’d) Interrogatories, objections based on, 10.4.2(b) Joint defense privilege, 22.7 Law of privilege Statutory provisions, 9.3.5 Understanding of, 9.3.3 Mass tort litigation, in, 33.7, Exhibit 33A Medical records, 9.3.2 Objections to requests for, 9.5.1 Pretrial submissions, protection in, 9.5.7 Privilege logs, 9.5.3, Exhibit 9C Protection during discovery, 9.5 Protection prior to discovery, 9.4 Protective orders, 9.6 Generally, 9.5.4, 9.6.1 Judicial relief from, 9.5.5 Motions for, Exhibit 9D Permissible uses of confidential information, 9.6.3 Sample, Exhibit 9E Stipulated “counsel only” order, 9.6.4, Exhibit 9G Types of orders, 9.6.2 Requests for production of documents, objections to based on, 11.3.3(c) Stipulated orders Confidentiality order, Exhibit 9F Protective orders “Counsel only” protective order, 9.6.4, Exhibit 9F Permissible use of confidential information, 9.6.3 Types of orders, 9.6.2 Subpoenas for, 9.5.6 Trade secrets, 9.3.1 Trial preparation materials, 9.3.4

CONFIDENTIALITY OF HEALTHCARE COMMUNICATIONS AND INFORMATION ACT Medical records, obtaining, 21.2 Recordkeepers, from, 16.2.3(a) CONSENT ORDERS, 1.7 CONSUMER INFORMATION Web sites, 7.4.4(g) CONTEMPT Motions for, 24.4.2(a) CORNELL UNIVERSITY LEGAL INFORMATION INSTITUTE Web sites, 7.4.5(b) CORPORATIONS Attorney-client privilege, corporate clients, 22.2.3 Business Web sites, 7.4.3(b) Client interviews, privilege issues, 4.2.2(b) Criminal cases, corporate liability versus individual liability in, 5.2.1 Depositions of See RULE 30(b)(6) DEPOSITIONS Interrogatories, responses to, duty to investigate, 10.4.1(b) Investigation of claims, corporate clients, 2.2.2 Opposing parties, ex parte contact with employees of, 4.3.5 COSTS Budgetary considerations See BUDGETARY CONSIDERATIONS Motions for, 24.4.4 COURT-ANNEXED ARBITRATION Discovery, 31.3 I–5

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

COURT-ANNEXED ARBITRATION (cont’d) Motor vehicle claims, 31.1.2 Personal injuries, 31.1.1 CRIMINAL CASES Corporate liability versus individual liability in, 5.2.1 Internal investigations in, 5.2 Prosecutorial discretion, 5.2.2 Public Company Accounting Reform and Investor Protection Act of 2002, 5.2.3 Spoliation of evidence in, 8.3.7 CROSS-EXAMINATION OF WITNESSES Depositions, in, 13.7.8(b)

D DAMAGES Interrogatories, quantifying claims for purposes of, 10.3.2(f) DAUBERT STANDARD Expert witnesses, 26.4 DEFAULT ADMISSIONS Generally, 20.4.3 Use of, 20.6.3 DEFAULT JUDGMENT Motions for, Exhibit 24G Spoliation of evidence, for, 8.3.4 DEFENSES Interrogatories, identifying factual bases for purposes of, 10.3.2(d) DEPOSITIONS Accountants, of See ACCOUNTANTS, DEPOSITIONS OF Attendance at, 13.7.3, 13.7.8(d) Motions to compel, Exhibit 24D Audiovisual depositions I–6

See AUDIOVISUAL DEPOSITIONS Business witnesses, e-discovery outline, Exhibit 25C Changing, 13.7.9 Commission for Human Rights, 28.7 Conduct of, 13.7 Court proceedings, use in, 13.9 Errors or irregularities, waiver of, 13.9.6(a) Generally, 2.3.7 Impeachment by prior inconsistent statements, for, 13.9.5 Live testimony, in lieu of, 13.9.2 Methods of presenting testimony, 13.9.4 Motions for, 24.5.5 Objections to Preservation of, 13.9.6(b) Waiver of, 13.9.6(a) Parties, of, 13.9.1 Rule of completeness, 13.9.3 Cross-examination of witnesses, 13.7.8(b) Diagrammatic testimony, 13.7.8(c) Duration, federal discovery practice, differences in, 27.3.5 Economists, of Economic appraisal, checklist, Exhibit 18A Generally, 18.2.1, 18.2.4 Preparation, 18.2.2 Expert witnesses, 18.2.2(b) Information, 18.2.2(a) Opinion testimony, 18.2.2(c) Strategic considerations, 18.2.3 Errors, irregularities or objections, waiver of, 13.9.6(a) Examination of witnesses, 13.7.8(b) Expert witnesses, of Audiovisual depositions Conduct of, 26.12

INDEX

DEPOSITIONS Expert witnesses, of Audiovisual depositions (cont’d) Federal discovery practice, differences in, 15.2.1(b) When to consider, 15.3.3 Behavior at, 26.10 Conduct of, 26.8 Defending, 26.9 Goals, 13.10.10 Preparation, 26.7 Scope of, 13.2.2 Strategic considerations, 26.6 Use of, 26.11 Federal discovery practice, differences in, 27.3 Duration, 27.3.5 Expert witnesses, audiovisual depositions of, 15.2.1(b) Notice, 27.3.3 Number of depositions, 27.3.2 Recording of testimony, 27.3.4 Time requirements, 27.3.1 Written questions, upon, 27.4 Generally, 13.1 Impeachment by prior inconsistent statements, use for, 13.9.5 Investigation of claims, budgetary considerations, 2.2.3(c) Joint individual/Rule 30(b)(6) depositions, 17.4.3 Leave of court, motions for, 24.5.3 Less than thirty days after service of complaint, motions to take deposition, Exhibit 24K Live testimony, in lieu of, 13.9.2 Medical experts See MEDICAL AND TECHNICAL EXPERTS, DEPOSITIONS OF Medical negligence cases, depositions of expert witnesses, 32.2.3

Compelling testimony, 32.2.3(a) Fees, 32.2.3(b) Materials subject to discovery, 32.2.3(c) Methods of presenting testimony, 13.9.4 Motions Attendance at, compelling, Exhibit 24D Court proceedings, use in, 24.5.5 Leave of court, 24.5.3 Less than thirty days after service of complaint, to take deposition, Exhibit 24K Outside Rhode Island, 24.5.2 Perpetuating testimony, 24.5.1 Responses to, compelling, 24.4.1, Exhibit 24B Drafting considerations, 24.7.1(c) Telephonic depositions, Exhibit 24O Written questions, upon, 24.5.4 Notice, 13.7.2 Federal discovery practice, differences in, 27.3.3 Number of, federal discovery practice, differences in, 27.3.2 Objections to, 13.7.8(e) Preservation of, 13.9.6(b) Waiver of, 13.9.6(a) Oral examination, upon, 2.3.5 Organization of documents, 12.1.7 Out-of-state and foreign witnesses, of Notice, Exhibit 23E Orders, Exhibits 23B, 23C Outside Rhode Island, 13.4 Motions for, 24.5.2 Persons before whom taken, 2.3.3(b) Perpetuating testimony, for, 13.3 Motions for, 24.5.1

I–7

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

DEPOSITIONS (cont’d) Persons before whom taken, 2.3.3 Generally, 13.5 Outside Rhode Island, 2.3.3(b) Within Rhode Island, 2.3.3(a) Preliminary statement, 13.7.8(a) Prior to action or pending appeal, 2.3.2 Production of documents, 13.7.5 Protective orders, 13.2.3, 13.7.8(f) Recording of testimony, 13.7.4 Federal discovery practice, differences in, 27.3.4 Recordkeepers, of Accountants, 18.1.4(a) Conduct of, 16.3.2 Procedures, 16.3 Sample questions, Exhibit 16C Responses to, motions to compel, 24.4.1 Drafting considerations, 24.7.1(c) Sample, Exhibit 24B Review of, 13.7.9 Rule of completeness, 13.9.3 Scheduling of, 3.4.3 Scope of, 13.2 Expert witnesses, 13.2.2 Limits on, 13.2.1 Protective orders, 13.2.3 Signing, 13.7.9 Stipulations re, 2.3.4, 13.6 Strategic considerations, 13.10 Appropriate directions to witness, 13.10.2 Arguing with opposing counsel, avoiding, 13.10.8 Exhaustion of witness’s recollection, 13.10.3 Exhibits, marking documents as, 13.10.9 Goals, 13.10.1 Expert witnesses, 13.10.10 Good questions, 13.10.4 I–8

Leading questions, 13.10.5 Listening, importance of, 13.10.6 Repeating questions, 13.10.7 Technical experts See MEDICAL AND TECHNICAL EXPERTS, DEPOSITIONS OF Telephonic depositions, 13.7.7 Motions for, Exhibit 24O Time requirements, 13.7.1 Federal discovery practice, differences in, 27.3.1 Written questions, upon Federal discovery practice, differences in, 27.4 Generally, 2.3.6, 13.8 Motions for, 24.5.4 DIAGRAMMATIC TESTIMONY Depositions, in, 13.7.8(c) DIRECT APPEALS, 24.6.1 DISCOVERY See specific topic DISCOVERY CONFERENCES Federal discovery practice, differences in, 27.2.6 DISCOVERY PLANS Administrative agency proceedings, 29.3 Agency files, obtaining, 29.3.2 Prehearing timetable, conformity with, 29.3.4 Specific discovery rules, ascertaining, 29.3.1 Subpoenas, use of, 29.3.5 Transcripts, requesting, 29.3.3 Analysis of discovery needs of case, 3.2 Additional sources of information, 3.2.3

INDEX

DISCOVERY PLANS Analysis of discovery needs of case (cont’d) Examination of facts and documents, 3.2.2 Clients, 3.2.2(a) Public sources of information, 3.2.2(b) Expert witnesses, need for, 3.2.5 How to obtain, 3.2.4 Periodic review, 3.2.6 Research of law and subject matter, 3.2.1 Budgetary considerations, evaluation of, 3.3 Audiovisual depositions, 3.3.3(b) Expert witnesses, fees, 3.3.3(a) Factors to consider, 3.3.2 Generally, 3.3.1 Litigation support services, 3.3.3(c) Federal discovery practice, differences in, 27.2.6 Generally, 3.1, 3.5 Mass tort litigation, in, 33.8 Scheduling of events, 3.4 Court rules and orders, compliance with, 3.4.2 Depositions, 3.4.3 Inspections, 3.4.3 Logical progression of discovery, developing, 3.4.1 Postfiling discovery, 3.4.1(b) Prefiling discovery, 3.4.1(a) Requests for extensions, dealing with, 3.4.4 Scheduling order deadlines, motions to amend, 3.4.5 Supplementing of responses, 3.4.6 DISCRETION OF COURT Abuse of discretion standard Appeals, 24.6.2

Withdrawal or amendment of admissions, motions for, 20.5.2(c) Generally, 9.2.3 Physical and mental examinations, 19.3 DISMISSAL OF ACTIONS Motions for, Exhibit 24H Entry of judgment, Exhibit 24J Spoliation of evidence, for, 8.3.4 DRUGS Physical and mental examinations, use in, 19.2.8(b) DUTY OF DISCLOSURE Federal discovery practice, differences in, 27.2.1 Generally, 2.3.1

E ECONOMISTS, DEPOSITIONS OF Economic appraisal, checklist, Exhibit 18A Generally, 18.2.1, 18.2.4 Preparation, 18.2.2 Expert witnesses, 18.2.2(b) Information, 18.2.2(a) Opinion testimony, 18.2.2(c) Strategic considerations, 18.2.3 EDGAR (WEB SITE) Discovery, use in, 7.4.3(a) E-DISCOVERY “Banker’s” boxes and tabs, 12.2.8 Bibliography, 25.1.3, Exhibit 25A Checking files, 12.2.10 Client interviews with technology personnel, questionnaire, Exhibit 25D

I–9

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

E-DISCOVERY (cont’d) Collection of evidence from opposing parties and third parties, 25.4 Interrogatories, use of, 25.4.3(a) Notice, 25.4.1 Preservation orders, 25.4.2 Requests for production of documents, use of, 25.4.3(b) Depositions of business witnesses, outline, Exhibit 25C End-of-day routine, establishing, 12.2.11 Federal discovery practice, differences in, 25.1.2, 27.2.4 Generally, 25.1.1 Hard drives Automatically backing up, 12.2.4 Available space, obtaining, 12.2.3 Interrogatories, use of, 25.4.3(a) Management practices, 25.2 Migration of existing folders and documents, 12.2.6 Naming structure for new files, 12.2.7 New boxes, 12.2.12 Notice Collection of evidence from opposing parties and third parties, 25.4.1 Samples, Exhibit 25D Preservation of evidence, 25.3.1 Duty to preserve, 25.3.1(a) Generally, 8.4.6 Orders, 25.4.2, Exhibit 25G Sample letter, Exhibit 25F Sanctions for breach of duty, 25.3.2 Scope of duty, 25.3.1(b) Requests for production of documents Duty to produce, 25.3.1(c) Sanctions for breach of duty, 25.3.2 Use of, 25.4.3(b) Review of procedures with staff, 12.2.9 I–10

Scanners, use of, 12.2.2 Sedona Guidelines, Exhibit 25B Servers, alphabetical files on, 12.2.5 Starting date, selecting, 12.2.1 ELECTRONIC DISCOVERY See E-DISCOVERY ELECTRONICALLY STORED EVIDENCE See E-DISCOVERY EMPLOYEE INTERVIEWS Conduct of, 5.4.4(e) Location of, 5.4.4(d) Outlines, 5.4.4(c) Persons attending, 5.4.4(b) Persons performing, 5.4.4(b) Plans, importance of, 5.4.4(a) Preserving impressions of, 5.4.4(f) Strategic considerations, 5.4.4(e) ENTRY OF JUDGMENT Dismissal of actions, motions for, Exhibit 24J Spoliation of evidence, for, 8.3.4 ENTRY ON PROPERTY See REQUESTS FOR PRODUCTION OF DOCUMENTS ETHICAL CONSIDERATIONS Commission for Human Rights, 28.9 Preservation of evidence, 8.4.1 EXAMINATION OF WITNESSES Depositions, in, 13.7.8(b) EXHIBITS Marking documents as, 13.10.9 EXPERT WITNESSES Accountants, depositions of Accountants as expert witnesses, 18.1.2 Preparation for using expert witnesses, 18.1.5(a)

INDEX

EXPERT WITNESSES (cont’d) Analysis of discovery needs of case, 3.2.5 Audiovisual depositions Conduct of, 26.12 Federal discovery practice, differences in, 15.2.1(b) When to consider, 15.3.3 Daubert standard, 26.4 Depositions of Audiovisual depositions Conduct of, 26.12 Federal discovery practice, differences in, 15.2.1(b) When to consider, 15.3.3 Behavior at, 26.10 Conduct of, 26.8 Defending, 26.9 Goals, 13.10.10 Preparation, 26.7 Scope of, 13.2.2 Strategic considerations, 26.6 Use of, 26.11 Economists, depositions of, 18.2.2(b) Fact witnesses testifying as expert witnesses, 26.13 Federal discovery practice, differences in, 26.15, 27.2.3 Audiovisual depositions, 15.2.1(b) Fees Budgetary considerations, 3.3.3(a) Medical negligence cases, depositions in, 32.2.3(b) Generally, 26.1 Interrogatories Identifying for purposes of, 10.3.2(e) Propounding, 26.5 Responses to, 26.5 Sample, Exhibit 26A Investigation of claims, budgetary considerations, 2.2.3(b) Medical experts, depositions of

See MEDICAL AND TECHNICAL EXPERTS, DEPOSITIONS OF Medical negligence cases, depositions in, 32.2.3 Compelling testimony, 32.2.3(a) Fees, 32.2.3(b) Materials subject to discovery, 32.2.3(c) Nontestifying expert witnesses, 26.14 Medical and technical experts, depositions of, 14.1.4 Organization of documents for, 12.1.8 Retention of, 26.3 Scheduling orders, Exhibit 26B Technical experts, depositions of See MEDICAL AND TECHNICAL EXPERTS, DEPOSITIONS OF Text of rule, 26.2 Working with, 26.3

F FAILURE TO MAKE DISCOVERY Sanctions, 1.7, 2.3.12 Federal discovery practice, differences in, 27.10 FEDERAL DISCOVERY PRACTICE, DIFFERENCES IN Audiovisual depositions, 15.2.2 Expert witnesses, 15.2.1(b) Standard depositions, 15.2.1(a) Depositions, 27.3 Duration, 27.3.5 Notice, 27.3.3 Number of depositions, 27.3.2 Recording of testimony, 27.3.4 Time requirements, 27.3.1 Written questions, 27.4 Discovery conferences, 27.2.6 Discovery plans, 27.2.6 I–11

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

FEDERAL DISCOVERY PRACTICE, DIFFERENCES IN (cont’d) Duty of disclosure, 27.2.1 E-discovery, 25.1.2, 27.2.4 Expert witnesses, 26.15, 27.2.3 Audiovisual depositions, 15.2.1(b) Generally, 27.1 Insurance, 27.2.2 Interrogatories, 27.6 Business records, production of, 27.6.4 Motions to compel, 27.6.3 Responses to, 27.6.2 Service of process, 27.6.1 Time requirements, 27.6.1 Physical and mental examinations, 27.8 Requests for admissions, 27.9 Requests for production of documents, 27.7 Rule 30(b)(6) depositions and, 17.2.3 Sanctions for failure to make discovery, 27.10 Supplementing of responses, 27.2.5 Unavailability of witnesses, 27.5 FEDERAL RULES OF CIVIL PROCEDURE Audiovisual depositions, 15.2.2 FILES See E-DISCOVERY FOLDERS See E-DISCOVERY FOREIGN WITNESSES See OUT-OF-STATE AND FOREIGN WITNESSES

G GENERAL ASSEMBLY Web sites, 7.4.4(d) I–12

GOOGLE Discovery, use in, 7.4.1(g) GOVERNMENT ENTITIES Attorney-client privilege, 22.2.5 Depositions of See RULE 30(b)(6) DEPOSITIONS Obtaining information from See PUBLIC SOURCES OF INFORMATION Web sites, 7.4.4 General Assembly, 7.4.4(d) Internal Revenue Service, 7.4.4(e) Judiciary, 7.4.4(b) Land records, 7.4.4(c) Product safety and consumer information, 7.4.4(g) Secretary of state, 7.4.4(a) Weather information, 7.4.4(f)

H HAGUE EVIDENCE CONVENTION Application for issuance of request for examination of witness, Exhibit 23F Commissions, 23.3.1(a) Countries not signatories to, 23.3.2 Involuntary discovery, 23.3.1(b) Letters of request, 23.3.1(b) Notices, 23.3.1(a) Originating motion, Exhibit 23I Request for international judicial assistance, Exhibit 23G Cover letter, Exhibit 23H Voluntary discovery, 23.3.1(a) HARD DRIVES Automatically backing up, 12.2.4 Available space, obtaining, 12.2.3

INDEX

HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) Medical records, obtaining, 21.1

I IDEX (WEB SITE) Discovery, use in, 7.4.1(d) IMPEACHMENT Depositions, use of prior inconsistent statements in, 13.9.5 INADVERTENT DISCLOSURE OF CONFIDENTIAL OR PRIVILEGED INFORMATION Effect of, 9.7.2 Prevention of, 9.7.1 Remedies for, 9.7.2 INJUNCTIVE RELIEF Business Calendar, in, 30.7 Defined, 30.7.1 Evidentiary issues, 30.7.4 Preliminary injunctive relief, 30.7.3 Where to obtain, 30.7.2 INSPECTION OF RECORDS Costs of, 6.2.2 Scheduling of, 3.4.3 INSURANCE Federal discovery practice, differences in, 27.2.2 Interrogatories, establishing existence for purposes of, 10.3.2(g) INTERNAL INVESTIGATIONS Bibliography, Exhibit 5A Budgetary considerations, 5.3.3(a) Criminal cases, in, 5.2 Corporate liability versus individual liability, 5.2.1

Prosecutorial discretion, 5.2.2 Public Company Accounting Reform and Investor Protection Act of 2002, 5.2.3 Documentation, 5.4.3 Available materials, overview of, 5.4.3(a) Destruction of, 5.4.3(e) Document czar, 5.4.3(b) Foundation for investigation, use as, 5.4.3(d) Organization of materials collected, 5.4.3(c) Elements of, 5.3.1 Employee interviews, 5.4.4 Conduct of, 5.4.4(e) Location of, 5.4.4(d) Outlines, 5.4.4(c) Persons attending, 5.4.4(b) Persons performing, 5.4.4(b) Plans, importance of, 5.4.4(a) Preserving impressions of, 5.4.4(f) Strategic considerations, 5.4.4(e) Factors militating against, 5.3.3 Budgetary considerations, 5.3.3(a) Drain on corporate resources, 5.3.3(b) Risk of disclosure, 5.3.3(c) Generally, 5.1 Necessity of, 5.3 Postinvestigation procedures, 5.5 Preliminary considerations, 5.4.1 Clients, identifying, 5.4.1(c) Goals, 5.4.1(f) In-house counsel, role of, 5.4.1(b) Initial steps, 5.4.1(a) Management support, securing, 5.4.1(d) Organizational chart and chronology, 5.4.1(h) Privileges, protection of, 5.4.1(e) Team, assembling, 5.4.1(g)

I–13

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

INTERNAL INVESTIGATIONS (cont’d) Privilege issues, 5.4.2 Attorney-client privilege, 5.4.2(b) Generally, 5.4.2(a) Preliminary considerations, 5.4.1(e) “Self-critical analysis” privilege, 5.4.2(e) Upjohn Co. v. United States, 5.4.2(d) Waiver of, 5.4.2(f) Work product doctrine, 5.4.2(c) Reasons for, 5.3.2 Reports, 5.4.5 Stages of, 5.4 INTERNAL REVENUE SERVICE Web sites, 7.4.4(e) INTERNET Admissibility of evidence from, 7.6 Attorneys, by, 7.2.3 Blogs, 7.5 Bulletin boards, 7.5 Corporate/business Web sites, 7.4.3 Business Web sites, 7.4.3(b) EDGAR, 7.4.3(a) News Web sites, 7.4.3(c) Extinct Web sites, 7.4.6 Generally, 7.1, 7.2.2 Government Web sites, 7.4.4 General Assembly, 7.4.4(d) Internal Revenue Service, 7.4.4(e) Judiciary, 7.4.4(b) Land records, 7.4.4(c) Product safety and consumer information, 7.4.4(g) Secretary of state, 7.4.4(a) Weather information, 7.4.4(f) Historical background, 7.2.1 Investigation of claims, resources re, 4.4.1

I–14

Legal and legal education Web sites, 7.4.5 Cornell University Legal Information Institute, 7.4.5(b) Law.com, 7.4.5(c) PACER, 7.4.5(a) Medical information Web sites, 7.4.1 Google, 7.4.1(g) IDEX, 7.4.1(d) MD Consult, 7.4.1(b) National Center for Biotechnology Information, 7.4.1(a) National Guideline Clearinghouse, 7.4.1(c) SEAK, 7.4.1(e) Use of information, 7.4.1(h) Wikipedia, 7.4.1(f) Newsgroups, 7.5 Personal information on Web sites, 7.4.2 Refdesk.com, 7.4.7(a) Search engines, 7.3 Generally, 7.3.1 List of, Exhibit 7A INTERROGATORIES Business records, federal discovery practice, differences in, 27.6.4 Commission for Human Rights, 28.6 Employment cases, 28.6.2 Housing cases, 28.6.1 Conditional order, Exhibit 10B Defendants, Exhibit 10D E-discovery, use in, 25.4.3(a) Expert witnesses Identifying for purposes of, 10.3.2(e) Propounding, 26.5 Responses to, 26.5 Sample, Exhibit 26A Failure to answer Remedies, 10.2.8 Sanctions, 10.2.9

INDEX

INTERROGATORIES (cont’d) Federal discovery practice, differences in, 27.6 Business records, production of, 27.6.4 Motions to compel, 27.6.3 Responses to, 27.6.2 Service of process, 27.6.1 Time requirements, 27.6.1 Form of, 10.2.4 Generally, 2.3.8, 10.1 Mass tort litigation, in, 33.9, Exhibit 33B Medical negligence cases, in, 32.2.1, Exhibit 32A Expert disclosure, 32.2.1(a) More than thirty interrogatories, motions to propound, Exhibit 24M Motions, 24.5.6 Federal discovery practice, differences in, 27.6.3 More responsive answers, compelling, 10.2.10 Drafting considerations, 24.7.1(b) Sample, Exhibit 24E More than thirty interrogatories, to propound, Exhibit 24M Responses to, compelling, 10.2.9, 24.4.1, Exhibits 10A, 24C Drafting considerations, 24.7.1(a) Number of, 10.2.5 More than thirty interrogatories, motions to propound, Exhibit 24M Objections to, 10.4.2 Generally, 24.3.3(b) Privilege, based on, 10.4.2(b) Rule 26, based on, 10.4.2(a) Persons who may be interrogated, 10.2.1

Plaintiffs, Exhibit 10C Procedures, 10.2 Responses to, 10.4 Business records, 10.4.4 Duty to investigate, 10.4.1 Corporate parties, 10.4.1(b) Individual parties, 10.4.1(a) Expert interrogatories, 10.4.3 Expert witnesses, 26.5 Failure to answer Remedies, 10.2.8 Sanctions, 10.2.9 Federal discovery practice, differences in, 27.6.2 Form of, 10.2.6 More responsive answers, motions to compel, 10.2.10 Drafting considerations, 24.7.1(b) Sample, Exhibit 24E Motions to compel, 10.2.9, 24.4.1, Exhibits 10A, 24C Drafting considerations, 24.7.1(a) Organization of documents, 12.1.3 Shortening time, motions for, Exhibit 24A Supplementing, 10.4.5 Time requirements, 10.2.7 Trial, use at, 10.5 Service of process, 10.2.3 Federal discovery practice, differences in, 27.6.1 Strategic considerations, 10.3 Content, 10.3.2 Damages, quantifying claims for, 10.3.2(f) Documents, locating, 10.3.2(c) Expert witnesses, identifying, 10.3.2(e) Factual bases of claims and defenses, identifying, 10.3.2(d) I–15

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

INTERROGATORIES Strategic considerations (cont’d) Insurance, establishing existence of, 10.3.2(g) Parties, identifying, 10.3.2(a) Timing, 10.3.1 Witnesses, identifying, 10.3.2(b) Time requirements, 10.2.2 Federal discovery practice, differences in, 27.6.1 Responses to, 10.2.7 Strategic considerations, 10.3.1 INTERVIEWS Client interviews See CLIENT INTERVIEWS Employee interviews, 5.4.4 Conduct of, 5.4.4(e) Location of, 5.4.4(d) Outlines, 5.4.4(c) Persons attending, 5.4.4(b) Persons performing, 5.4.4(b) Plans, importance of, 5.4.4(a) Preserving impressions of, 5.4.4(f) Strategic considerations, 5.4.4(e) INVESTIGATION OF CLAIMS Attorney fees, 2.2.4 Budgetary considerations, 2.2.3 Affidavits, 2.2.3(a) Depositions, 2.2.3(c) Expert witnesses, 2.2.3(b) Client interviews See CLIENT INTERVIEWS Corporate clients, 2.2.2 Generally, 2.1, 4.1 Individual clients, 2.2.1 Relevant documents, 2.2.1(b) Relevant facts and witnesses, 2.2.1(a) Internal investigations See INTERNAL INVESTIGATIONS Internet resources, 4.4.1 I–16

Private investigators, 4.4.2 Selection of, 4.4.2(b) Services provided, 4.4.2(a) Work product issues, 4.4.2(c) Professional conduct and, 2.2.6 Clients, obligations to, 2.2.6(a) Generally, 4.5 Opposing parties and counsel, obligations to, 2.2.6(b) Statutory considerations, 2.2.5 Acceleration, 2.2.5(c) Notice, 2.2.5(b) Statutes of limitations, 2.2.5(a) Witness statements, 4.3 Corporate opposing parties, ex parte contact with employees of, 4.3.5 Identifying potential witnesses, 4.3.1 Interview process, 4.3.3 Preparation for interview, 4.3.2 Use of, 4.3.4

J JOINT DEFENSE PRIVILEGE, 22.7 JUDICIARY Web sites, 7.4.4(b) JURY INSTRUCTIONS Spoliation of evidence, re, 8.3.5, Exhibit 8A

K KEEPERS OF RECORDS See RECORDKEEPERS KOR See RECORDKEEPERS

INDEX

L LAW.COM Discovery, use in, 7.4.5(c) LEARNED TREATISES Medical negligence cases, in, 32.4.2 LETTERS OF REQUEST Foreign countries, discovery of witnesses in, 23.3.1(b) Hague Evidence Convention, 23.3.1(b) LIMITS ON DISCOVERY, 1.4, 9.2.4

M MALPRACTICE See MEDICAL NEGLIGENCE CASES MASS TORT LITIGATION Attorneys Appointment of, 33.3 Pro hac vice procedure, 33.4 Role of, 33.3 Confidentiality orders, 33.7, Exhibit 33A Coordination with related litigation, 33.11 Defined, 33.2 Discovery plans, 33.8 Generally, 33.1 Interrogatories, 33.9, Exhibit 33B Master discovery sets, orders for, Exhibit 33B Physicians, ex parte contacts with, 33.10, Exhibit 33C Preservation of evidence, 33.5 Privilege litigation, 33.7 Protective orders, 33.7, Exhibit 33A Requests for production of documents, 33.9, Exhibit 33B Time requirements, 33.6

MD CONSULT (WEB SITE) Discovery, use in, 7.4.1(b) MEDIATION Discovery, 31.3 Generally, 31.2 MEDICAL AND TECHNICAL EXPERTS, DEPOSITIONS OF Allowed as of right, 14.1.1 Areas of examination, 14.4 Bias, 14.4.5 Consultation, scope of, 14.4.3 Credibility, 14.4.5 Disputes, 14.4.4 Grounds for excluding or admitting testimony, 14.4.6 Methodology, 14.4.2 Opinions, 14.4.3 Qualifications, 14.4.1 Defending, 14.5 Consultation or questioning during deposition, 14.5.3 Expert’s file, review of documents in, 14.5.1 Preparation of expert, 14.5.2 Demeanor, 14.5.2(c) Form and certainty of opinions, 14.5.2(a) Support for opinions, 14.5.2(b) Documents, use of, 14.3 Attorneys, communications with, 14.3.2 Expert reports, 14.3.3 Expert’s file, 14.3.1 Sample request, Exhibit 14B Fees, 14.1.3 Nontestifying expert witnesses, 14.1.4 Practice and procedure, 14.1.2 Preparation and research, 14.2 Completeness of disclosure, assessing, 14.2.2 Goals, 14.2.4 Preliminary considerations, 14.2.1 I–17

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

MEDICAL AND TECHNICAL EXPERTS, DEPOSITIONS OF Preparation and research (cont’d) Science, 14.2.3 Rule 26, Exhibit 14A MEDICAL EXAMINATIONS See PHYSICAL AND MENTAL EXAMINATIONS MEDICAL INFORMATION WEB SITES Google, 7.4.1(g) IDEX, 7.4.1(d) MD Consult, 7.4.1(b) National Center for Biotechnology Information, 7.4.1(a) National Guideline Clearinghouse, 7.4.1(c) SEAK, 7.4.1(e) Use of information, 7.4.1(h) Wikipedia, 7.4.1(f) MEDICAL NEGLIGENCE CASES Expert disclosure, 32.2.1(a) Expert witnesses, depositions of, 32.2.3 Compelling testimony, 32.2.3(a) Fees, 32.2.3(b) Materials subject to discovery, 32.2.3(c) Generally, 32.1 Interrogatories, 32.2.1, Exhibit 32A Expert disclosure, 32.2.1(a) Learned treatises, 32.4.2 Motions, 32.4 Requests for production of documents, 32.2.2, Exhibit 32B Sanctions, 32.4 Scheduling conferences, 32.4.1 Scheduling orders, 32.4.1 Subpoenas, 32.3 In-state records, 32.3.2 In-state witnesses, 32.3.1 I–18

Out-of-state witnesses and records, 32.3.3 MEDICAL RECORDS Confidentiality of Healthcare Communications and Information Act, obtaining under, 21.2 Recordkeepers, from, 16.2.3(a) Confidential or privileged information, 9.3.1 Defending attempts to obtain, 21.4 Gen. Laws § 5-37.3-4, Exhibit 21A Generally, 21.7 HIPAA, obtaining under, 21.1 Organization of documents, 12.1.4 Own client, obtaining from, 21.3 Budgetary considerations, 21.3.2 Consent forms, 21.3.1 Quashing motions, 21.6 Recordkeepers, obtaining from, 16.2.3 Charges, evidence of, 16.2.3(c) Confidentiality of Healthcare Communications and Information Act, 16.2.3(a) Photostatic copies, 16.2.3(b) Sample authorization for use of protected health care information, Exhibit 21B Subpoenas for, 21.5 MENTAL EXAMINATIONS See PHYSICAL AND MENTAL EXAMINATIONS METHODS OF DISCOVERY, 1.5 MOTIONS Attorney fees, for, 24.4.4 Contempt, for, 24.4.2(a) Costs, for, 24.4.4 Depositions Attendance at, compelling, Exhibit 24D Court proceedings, use in, 24.5.5

INDEX

MOTIONS Depositions (cont’d) Leave of court, 24.5.3 Less than thirty days after service of complaint, to take deposition, Exhibit 24K Outside Rhode Island, 24.5.2 Perpetuating testimony, 24.5.1 Responses to, compelling, 24.4.1, Exhibit 24B Drafting considerations, 24.7.1(c) Telephonic depositions, Exhibit 24O Written questions, upon, 24.5.4 Drafting considerations, 24.7 Depositions, compelling responses to, 24.7.1(c) Interrogatories More responsive answers, compelling, 24.7.1(b) Responses to, compelling, 24.7.1(a) Motions to compel, 24.7.1 Protective orders, motions for, 24.7.3 Requests for production of documents, 24.7.1(a) Sanctions, motions for, 24.7.2 Failure to comply with orders compelling discovery Contempt, motions for, 24.4.2(a) “Other consequences,” 24.4.2(b) Generally, 1.7, 24.1 Interrogatories, 24.5.6 Federal discovery practice, differences in, 27.6.3 More responsive answers, compelling, 10.2.10 Drafting considerations, 24.7.1(b) Sample, Exhibit 24E

More than thirty interrogatories, to propound, Exhibit 24M Responses to, compelling, 10.2.9, 24.4.1, Exhibits 10A, 24C Drafting considerations, 24.7.1(a) Limiting discovery, for, 24.3 Protective orders, for, 24.3.2 Rule 26(c) motions, 24.3.2(a) Rule 30(d) motions, 24.3.2(b) Rule 26(b), 24.3.1 Medical negligence cases, in, 32.4 Medical records, motions to quash, 21.6 Protective orders, for, 24.3.2 Drafting considerations, 24.7.3 Rule 26(c) motions, 24.3.2(a) Rule 30(d) motions, 24.3.2(b) Sample, Exhibit 24N Requests for admissions, 24.4.3, 24.5.9 Sufficiency of responses, determining, 20.4.1, Exhibit 24I Requests for production of documents, 24.4.1, 24.5.7, Exhibit 24F Compelling responses to, Exhibit 10A Drafting considerations, 24.7.1(a) Response date, to file with, Exhibit 24L Sanctions, for, 24.7.2 Scope of discovery, 24.2 MOTOR VEHICLES Court-annexed arbitration, 31.1.2

N NATIONAL CENTER FOR BIOTECHNOLOGY INFORMATION Web sites, 7.4.1(a) I–19

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

NATIONAL GUIDELINE CLEARINGHOUSE Web sites, 7.4.1(c) NECESSITY FOR DISCOVERY, 1.2 NEGLIGENCE See MEDICAL NEGLIGENCE CASES NEWSGROUPS Discovery, use in, 7.5 NOTICE Depositions, 13.7.2 Federal discovery practice, differences in, 27.3.3 E-discovery Collection of evidence from opposing parties and third parties, 25.4.1 Samples, Exhibit 25D Investigation of claims, considerations, 2.2.5(b) Out-of-state and foreign witnesses, depositions of, Exhibit 23E Preservation letters, 8.4.3(b) Rule 30(b)(6) depositions, 17.3.1, Exhibits 3A, 17A

O OBJECTIONS Confidential or privileged information, requests for, 9.5.1 Depositions, to, 13.7.8(e) Preservation of, 13.9.6(b) Waiver of, 13.9.6(a) Interrogatories, to, 10.4.2 Generally, 24.3.3(b) Privilege, based on, 10.4.2(b) Rule 26, based on, 10.4.2(a) Presenting, 24.3.3(a) Preserving, 24.3.3(a) I–20

Requests for admissions, to, 20.3.2(e) Sufficiency, motions to determine, 20.4.2 Requests for production of documents, to, 11.3.3 Confidential or privileged information, 11.3.3(c) General objections, 11.3.3(b) Generally, 24.3.3(c) Overall approach, 11.3.3(a) Privilege, based on, 11.3.3(c) Protective orders, based on, 11.3.3(c) Reasonable time, place, and manner of production, based on, 11.3.2 Relevance, based on, 11.3.3(c) Specific objections, 11.3.3(c) OPINION TESTIMONY Economists, depositions of, 18.2.2(c) Medical and technical experts, depositions of Areas of examination, 14.4.3 Form and certainty of opinions, 14.5.2(a) Support for opinions, 14.5.2(b) ORAL EXAMINATION Depositions upon, 2.3.5 ORGANIZATION OF DOCUMENTS Chronologies, 12.1.6 Depositions, 12.1.7 E-discovery See E-DISCOVERY Electronically stored evidence See E-DISCOVERY Expert witnesses, for, 12.1.8 Generally, 12.1.1, 12.1.10 Interrogatories, responses to, 12.1.3 Medical records, 12.1.5 Paginating documents, 12.1.4 Pretrial conferences, 12.1.2

INDEX

ORGANIZATION OF DOCUMENTS (cont’d) Requests for production of documents, responses to, 12.1.3 Trial, for, 12.1.9 ORGANIZATIONAL DEPOSITIONS See RULE 30(b)(6) DEPOSITIONS OUT-OF-STATE AND FOREIGN WITNESSES Bibliography, Exhibit 23M Commissions Foreign countries, discovery of witnesses in, 23.3.1(a) Hague Evidence Convention, 23.3.1(a) Motions for, Exhibit 23A Orders, Exhibit 23B Other states within United States, discovery of witnesses in, 23.2.2 Depositions of Notice, Exhibit 23E Orders, Exhibits 23B, 23C Foreign countries, in, 23.3 Application for issuance of request for examination of witness, Exhibit 23F Commissions, 23.3.1(a) Involuntary discovery, 23.3.1(b) Letters of request, 23.3.1(b) Notices, 23.3.1(a) Originating motion, Exhibit 23I Request for international judicial assistance, Exhibit 23G Cover letter, Exhibit 23H Voluntary discovery, 23.3.1(a) Generally, 23.1 Hague Evidence Convention, 23.3.1 Application for issuance of request for examination of witness, Exhibit 23F

Commissions, 23.3.1(a) Countries not signatories to, 23.3.2 Involuntary discovery, 23.3.1(b) Letters of request, 23.3.1(b) Notices, 23.3.1(a) Originating motion, Exhibit 23I Request for international judicial assistance, Exhibit 23G Cover letter, Exhibit 23H Voluntary discovery, 23.3.1(a) Other states within United States, 23.2 Commissions, 23.2.2 Rule 28(b), 23.2.1 Statutory provisions, 23.2.1 Subpoenas of Orders, Exhibits 23B, 23C Sample, Exhibit 23D OUT-OF-STATE CASES Discovery in Rhode Island for use in, 23.4 Subpoenas Motions for, Exhibit 23K Orders, Exhibit 23L Petitions for, Exhibit 23J

P PACER (WEB SITE) Discovery, use in, 7.4.5(a) “PAPERLESS” OFFICE See E-DISCOVERY PERPETUATING TESTIMONY Depositions for, 13.3 Motions for, 24.5.1 Petitions for, Exhibit 3C PERSONAL INJURIES Court-annexed arbitration, 31.1.1 PETITIONS Out-of-state cases, subpoenas, Exhibit 23J I–21

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

PETITIONS (cont’d) Perpetuating testimony, for, Exhibit 3C Requests for production of documents, for, Exhibit 3B PHYSICAL AND MENTAL EXAMINATIONS Discretion of court, 19.3 Examiner’s reports, 19.2.11 Federal discovery practice, differences in, 27.8 “Garden variety” conditions, 19.2.2 Generally, 2.3.10, 19.1 Good cause for, 19.2.5 Location, time, and costs, 19.2.6, 19.2.7 Medical condition “in controversy,” 19.2.1 Motions for, 24.5.8 Persons conducting, 19.2.6, 19.2.9 Persons present at, 19.2.10 Requirements for obtaining order for, 19.2 Scope of, 19.2.8 Blood tests and chemical analyses, use of, 19.2.8(d) Drugs and anesthetics, use of, 19.2.8(b) Generally, 19.2.6, 19.2.8(a) Vocational experts, use of, 19.2.8(e) X-rays, use of, 19.2.8(c) Specific and/or severe conditions, 19.2.3 Turner v. Imperial Stores test, 19.2.4 PHYSICIANS Mass tort litigation, ex parte contacts with in, 33.10, Exhibit 33C Physical and mental examinations, conducting, 19.2.6, 19.2.9

I–22

PRELIMINARY INJUNCTIVE RELIEF Business Calendar, in, 30.7.3 PRELIMINARY STATEMENTS Depositions, in, 13.7.8(a) PRESERVATION OF EVIDENCE Court-ordered duty, 8.4.4 Duty commencing prior to litigation, 8.4.2 E-discovery, 25.3.1 Duty to preserve, 25.3.1(a) Generally, 8.4.6 Orders, 25.4.2, Exhibit 25G Sample letter, Exhibit 25F Sanctions for breach of duty, 25.3.2 Scope of duty, 25.3.1(b) Ethical considerations, 8.4.1 Generally, 8.1 Mass tort litigation, 33.5 Opportunity to inspect, 8.4.5 Preservation letters, 8.4.3 Advising client to preserve, 8.4.3(a) Notice to other parties, 8.4.3(b) PRETRIAL PROCEEDINGS Admissions included in pretrial orders, heightened standard for, 20.5.2(b) Confidential or privileged information, protection in pretrial submissions, 9.5.7 Organization of documents for pretrial conferences, 12.1.2 PRIOR INCONSISTENT STATEMENTS Depositions, use of for impeachment, 13.9.5 PRIVATE INVESTIGATORS Selection of, 4.4.2(b) Services provided, 4.4.2(a) Work product issues, 4.4.2(c)

INDEX

PRIVILEGED INFORMATION See CONFIDENTIAL OR PRIVILEGED INFORMATION PRIVILEGES Attorney-client privilege See ATTORNEY-CLIENT PRIVILEGE Confidential or privileged information See CONFIDENTIAL OR PRIVILEGED INFORMATION Corporate client interviews, privilege issues, 4.2.2(b) Internal investigations, issues in, 5.4.2 Attorney-client privilege, 5.4.2(b) Generally, 5.4.2(a) Preliminary considerations, 5.4.1(e) “Self-critical analysis” privilege, 5.4.2(e) Upjohn Co. v. United States, 5.4.2(d) Waiver of, 5.4.2(f) Work product doctrine, 5.4.2(c) Joint defense privilege, 22.7 Law of privilege Statutory provisions, 9.3.5 Understanding of, 9.3.3 Privilege logs, 9.5.3, Exhibit 9C “Self-critical analysis” privilege, 5.4.2(e) PRODUCT SAFETY Web sites, 7.4.4(g) PRODUCTION OF DOCUMENTS See REQUESTS FOR PRODUCTION OF DOCUMENTS PROFESSIONAL CONDUCT Investigation of claims, 2.2.6 Clients, obligations to, 2.2.6(a)

Generally, 4.5 Opposing parties and counsel, obligations to, 2.2.6(b) PROFESSIONALISM, 1.6 PROSECUTORIAL DISCRETION, 5.2.2 PROTECTIVE ORDERS Confidential or privileged information, 9.6 Generally, 9.5.4, 9.6.1 Judicial relief from, 9.5.5 Motions for, Exhibit 9D Permissible uses of confidential information, 9.6.3 Sample, Exhibit 9E Stipulated “counsel only” order, 9.6.4, Exhibit 9G Types of orders, 9.6.2 Depositions, 13.2.3, 13.7.8(f) Mass tort litigation, in, 33.7, Exhibit 33A Motions for, 24.3.2 Drafting considerations, 24.7.3 Rule 26(c) motions, 24.3.2(a) Rule 30(d) motions, 24.3.2(b) Sample, Exhibit 24N Requests for admissions, motions pursuant to, 20.3.2(g) Requests for production of documents, objections to based on, 11.3.3(c) Stipulated orders “Counsel only” protective order, 9.6.4, Exhibit 9F Permissible use of confidential information, 9.6.3 Types of orders, 9.6.2 PSYCHOLOGICAL EXAMINATIONS See PHYSICAL AND MENTAL EXAMINATIONS I–23

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

PUBLIC COMPANY ACCOUNTING REFORM AND INVESTOR PROTECTION ACT OF 2002 Criminal cases, 5.2.3 PUBLIC SOURCES OF INFORMATION Access to Public Records Act, under, 6.1 Applicability of, 6.1.3 Exemptions, 6.1.3(d) Generally, 6.1.2 Public body, defined Case law, 6.1.3(b) Statutory definition, 6.1.3(a) Public record, defined, 6.1.3(c) Statement of purpose, 6.1.1 Commercial use, 6.4 Continuing access, 6.5 Copying, costs of, 6.2.2 Denial letter, Exhibit 6B Documents, access to, 6.2.1 Government Web sites, 7.4.4 General Assembly, 7.4.4(d) Internal Revenue Service, 7.4.4(e) Judiciary, 7.4.4(b) Land records, 7.4.4(c) Product safety and consumer information, 7.4.4(g) Secretary of state, 7.4.4(a) Weather information, 7.4.4(f) Inspection of records, costs of, 6.2.2 Remedies, 6.3 Request letter, Exhibit 6A State agency contact information, Exhibit 6C State government contact information, Exhibit 6D PURPOSE OF DISCOVERY, 1.3, 9.2.1

I–24

Q QUASH, MOTIONS TO Medical records, obtaining, 21.6

R RADIOLOGY Physical and mental examinations, use in, 19.2.8(c) RECEIVERSHIPS Business Calendar, in, 30.5 Guidelines for, 30.5.2 Initiation of, 30.5.1 RECORDKEEPERS Depositions of Accountants, 18.1.4(a) Conduct of, 16.3.2 Procedures, 16.3 Sample questions, Exhibit 16C Generally, 16.1 Subpoenas of Authority to issue, 16.2.1 Cover letter, Exhibit 16A Documentary evidence, 16.2.2 Sample records, Exhibit 16B Drafting, 16.3.1 Medical records, 16.2.3 Charges, evidence of, 16.2.3(c) Confidentiality of Healthcare Communications and Information Act, 16.2.3(a) Photostatic copies, 16.2.3(b) Service of process, 16.3.1 REFDESK.COM Discovery, use in, 7.4.7(a) RELEVANCE Requests for production of documents, objections to based on, 11.3.3(c)

INDEX

REQUESTS FOR ADMISSIONS Commission for Human Rights, 28.4 Default admissions, 20.4.3 Use of, 20.6.3 Denials, introduction into evidence prohibited, 20.6.5 Drafting of, 20.2 Mechanics, 20.2.1 Scope, 20.2.2 Strategies for effective use, 20.2.4 Style, 20.2.3 Federal discovery practice, differences in, 27.9 Generally, 2.3.11, 20.1, 20.8 Motions, 24.4.3, 24.5.9 Sufficiency of responses, determining, 20.4.1, Exhibit 24I Objections to, 20.3.2(e) Sufficiency, motions to determine, 20.4.2 Other proceedings, use of admissions in, 20.6.4 Protective orders, motions for, 20.3.2(g) Responses to, 20.3 Admitting truth of matter, 20.3.2(b) Denying truth of matter, 20.3.2(c) Duty of good faith, 20.3.2(d) Explaining inability to truthfully admit or deny, 20.3.2(d) Generally, 20.3.2(a) Protective orders, motions for, 20.3.2(g) Sufficiency, motions to determine, 20.4.1, Exhibit 24I Supplementing, 20.3.2(f) Time requirements, 20.3.1 Sanctions for failure to admit, 20.7 Summary judgment, use of admissions to obtain, 20.6.1 Trial, use of admissions at, 20.6.2

Withdrawal or amendment of admissions, motions for, 20.5 Abuse of discretion standard, 20.5.2(c) Generally, 20.5.1 Grounds for, 20.5.2(a) Pretrial orders, heightened standard for admissions included in, 20.5.2(b) REQUESTS FOR PRODUCTION OF DOCUMENTS Commission for Human Rights, 28.5 Employment cases, 28.5.2 Housing cases, 28.5.1 Definitions, 11.2.6(b) Documents requested, 11.2.5 Drafting, 11.2.6 Definitions, 11.2.6(b) Generally, 11.2.6(a) Introduction, 11.2.6(b) Specific requests, 11.2.6(c) E-discovery Duty to produce, 25.3.1(c) Sanctions for breach of duty, 25.3.2 Use in, 25.4.3(b) Extensions of time, 11.2.3 Federal discovery practice, differences in, 27.7 Generally, 2.3.9, 11.1 Introduction, 11.2.6(b) Mass tort litigation, in, 33.9, Exhibit 33B Medical negligence cases, in, 32.2.2, Exhibit 32B Motions, 24.4.1, 24.5.7, Exhibit 24F Compelling responses to, Exhibit 10A Drafting considerations, 24.7.1(a) Response date, to file with, Exhibit 24L Number of requests, 11.2.4

I–25

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

REQUESTS FOR PRODUCTION OF DOCUMENTS (cont’d) Objections to, 11.3.3 Confidential or privileged information, 11.3.3(c) Generally, 24.3.3(c) General objections, 11.3.3(b) Overall approach, 11.3.3(a) Privilege, based on, 11.3.3(c) Protective orders, based on, 11.3.2 Reasonable time, place and manner of production, based on, 11.3.2 Relevance, based on, 11.3.3(c) Specific objections, 11.3.3(c) Persons served on, 11.2.1 Parties, 11.2.1(a) Private nonparties, 11.2.1(b) Public nonparties, 11.2.1(c) Petitions for, Exhibit 3B Premature service, 11.2.2 Reasonable time, place and manner of production, 11.3.2 Relevance, 11.2.5 Response date, motion to file with, Exhibit 24L Responses to, 11.3 Motions to compel, Exhibit 10A Organization of documents, 12.1.3 Samples, Exhibits 11A, 11B Supplementing, 11.3.4 When to respond, 11.3.1 Specific requests, 11.2.6(c) Things requested, 11.2.5 Time requirements, 11.2.3 When to serve, 11.2.2 RULE OF COMPLETENESS Depositions and, 13.9.3 RULE 30(b)(6) DEPOSITIONS Binding effect of, 17.5 Checklist, Exhibit 17B Conduct of, 13.7.6, 17.4 I–26

Examination beyond scope of notice, 17.4.2 Case law allowing, 17.4.2(b) Case law not allowing, 17.4.2(a) King v. Pratt & Whitney, 17.4.2(b) Paparelli v. Prudential Insurance Co. of America, 17.4.2(a) Federal discovery practice, differences in, 17.2.3 Generally, 17.1 Interpretation of rule, 17.2.2 Joint individual/Rule 30(b)(6) depositions, 17.4.3 Legal positions or contentions, examination re, 17.4.4 Matters for which examination requested, 17.3.5 Legal positions or contentions, 17.4.4 Reasonable particularity, 17.3.5(a) Failure of, 17.3.5(b) Mechanics of rule, 17.2 Notice, 17.3.1, Exhibits 3A, 17A Organizational representative, identifying, 17.3.4 Preliminary matters, 17.4.1 Preparation of witnesses, 17.3.3 Documents used in, identification and production of, 17.3.3(b) Duty to prepare, 17.3.3(a) Subpoenas, 17.3.2 Text of rule, 17.2.1

S SANCTIONS Failure to admit, for, 20.7 Failure to make discovery, for Federal discovery practice, differences in, 27.10 Generally, 1.7, 2.3.12 Interrogatories, failure to answer, 10.2.9

INDEX

SANCTIONS (cont’d) Medical negligence cases, in, 32.4 Motions for, drafting considerations, 24.7.2 Preservation of evidence, breach of duty, 25.3.2 Production of evidence, breach of duty, 25.3.2 SCANNERS E-discovery, use in, 12.2.2 SCHEDULING CONFERENCES Medical negligence cases, in, 32.4.1 SCHEDULING ORDERS Deadlines, motions to amend, 3.4.5 Expert witnesses, Exhibit 26B Medical negligence cases, in, 32.4.1 Motion to modify, Exhibit 3D SCOPE OF DISCOVERY Generally, 1.4, 9.2.1 Motions and, 24.2 Rule 26(b)(1), 9.2.2 SEAK (WEB SITE) Discovery, use in, 7.4.1(e) SEARCH ENGINES Generally, 7.3.1 List of, Exhibit 7A SECRETARY OF STATE Web sites, 7.4.4(a) SECURITIES AND EXCHANGE COMMISSION EDGAR Web site, 7.4.3(a) SEDONA GUIDELINES, Exhibit 25B “SELF-CRITICAL ANALYSIS” PRIVILEGE, 5.4.2(e) SERVERS Alphabetical folders on, 12.2.5

SERVICE OF PROCESS Depositions less than thirty days after service of complaint, motions to take, Exhibit 24K Interrogatories, 10.2.3 Federal discovery practice, differences in, 27.6.1 Recordkeepers, subpoenas of, 16.3.1 Requests for production of documents, premature service, 11.2.2 SETTLEMENT Audiovisual depositions, 15.3.5 SPECIAL DEMONSTRATIONS Audiovisual depositions, 15.3.2 SPOLIATION OF EVIDENCE Criminal cases, in, 8.3.7 Discovery of, 8.2 Generally, 8.1 Remedies for, 8.3 Admissibility not relevant to, 8.3.2 Closing argument, reference in, 8.3.6 Default judgment, 8.3.4 Dismissal of actions, 8.3.4 Entry of judgment, 8.3.4 Exclusion of evidence, 8.3.3 Factors considered in determining, 8.3.1 Jury instructions re, 8.3.5, Exhibit 8A Tort claims based on, 8.3.8 STATUTES OF LIMITATIONS Investigation of claims, considerations, 2.2.5(a) STIPULATIONS Confidentiality order, Exhibit 9F Depositions, re, 2.3.4, 13.6 Protective orders “Counsel only” protective order, 9.6.4, Exhibit 9F I–27

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

STIPULATIONS Protective orders (cont’d) Permissible use of confidential information, 9.6.3 Types of orders, 9.6.2 SUBPOENAS Administrative agency proceedings, 29.3.5 Confidential or privileged information, for, 9.5.6 Generally, 2.3.13 Medical negligence cases, in, 32.3 In-state records, 32.3.2 In-state witnesses, 32.3.1 Out-of-state witnesses and records, 32.3.3 Medical records, for, 21.5 Out-of-state and foreign witnesses, of Orders, Exhibits 23B, 23C Sample, Exhibit 23D Out-of-state cases Motions for, Exhibit 23K Orders, Exhibit 23L Petitions for, Exhibit 23J Recordkeepers, of Authority to issue, 16.2.1 Cover letter, Exhibit 16A Documentary evidence, 16.2.2 Sample records, Exhibit 16B Drafting, 16.3.1 Medical records, 16.2.3 Charges, evidence of, 16.2.3(c) Confidentiality of Healthcare Communications and Information Act, 16.2.3(a) Photostatic copies, 16.2.3(b) Service of process, 16.3.1 Rule 30(b)(6) depositions, 17.3.2 SUMMARY JUDGMENT Admissions, use of to obtain, 20.6.1 SUPERIOR COURT Business Calendar I–28

See BUSINESS CALENDAR Rules of Civil Procedure See specific topic SUPPLEMENTING OF RESPONSES Discovery plans, 3.4.6 Federal discovery practice, differences in, 27.2.5 Interrogatories, 10.4.5 Requests for admissions, 20.3.2(f) Requests for production of documents, 11.3.4

T TECHNICAL EXPERTS, DEPOSITIONS OF See MEDICAL AND TECHNICAL EXPERTS, DEPOSITIONS OF TELEPHONIC DEPOSITIONS Conduct of, 13.7.7 Motions for, Exhibit 24O TORTS Mass tort litigation See MASS TORT LITIGATION Spoliation of evidence, claims based on, 8.3.8 TRADE SECRETS Confidential or privileged information, 9.3.1 TRANSCRIPTS Administrative agency proceedings, 29.3.3 TRIAL Admissions, use of at, 20.6.2 Interrogatories, response, use of at, 10.5 Organization of documents for, 12.1.9 Preparation materials, confidential or privileged information, 9.3.4

INDEX

U UNAVAILABILITY OF WITNESSES Audiovisual depositions, 15.3.1 Federal discovery practice, differences in, 27.5

V VIDEOTAPED DEPOSITIONS See AUDIOVISUAL DEPOSITIONS VOCATIONAL EXPERTS Physical and mental examinations, use in, 19.2.8(e)

W WAIVER Attorney-client privilege, 22.5 Express waiver, 22.5.1 Implied waiver, 22.5.2 Inadvertent disclosure, 22.5.3 At issue waiver, 22.5.2 Depositions, waiver of errors, irregularities, or objections, 13.9.6(a) Internal investigations, waiver of privileges in, 5.4.2(f) WEATHER INFORMATION Web sites, 7.4.4(f) WEB SITES See INTERNET WIKIPEDIA Discovery, use in, 7.4.1(f) WITNESSES Client interviews, evaluating client as potential witness in, 4.2.1(i) Expert witnesses See EXPERT WITNESSES Foreign witnesses

See OUT-OF-STATE AND FOREIGN WITNESSES Interrogatories, identifying for purposes of, 10.3.2(b) Investigation of claims, witness statements, 4.3 Corporate opposing parties, ex parte contact with employees of, 4.3.5 Identifying potential witnesses, 4.3.1 Interview process, 4.3.3 Preparation for interview, 4.3.2 Use of, 4.3.4 Medical negligence cases, subpoenas in In-state witnesses, 32.3.1 Out-of-state witnesses, 32.3.3 Out-of-state witnesses See OUT-OF-STATE AND FOREIGN WITNESSES Petitions to perpetuate testimony, Exhibit 3C Rule 30(b)(6) depositions, preparation for, 17.3.3 Documents used in, identification and production of, 17.3.3(b) Duty to prepare, 17.3.3(a) Unavailability of Audiovisual depositions, 15.3.1 Federal discovery practice, differences in, 27.5 WORK PRODUCT DOCTRINE Attorney-client privilege, relationship with, 22.9 Generally, 22.8 Internal investigations, in, 5.4.2(c) Practical considerations, 22.10 What to do when opposing party asserts, 22.10.2 When to assert, 22.10.1 Private investigators, issues re, 4.4.2(c) I–29

DISCOVERY & DEPOSITIONS IN RHODE ISLAND

WRITTEN QUESTIONS, DEPOSITIONS UPON Federal discovery practice, differences in, 27.4 Generally, 2.3.6, 13.8 Motions for, 24.5.4

I–30

X X-RAYS Physical and mental examinations, use in, 19.2.8(c)