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| Discovery Management: What To Do With What You Get |
George "Tex" Quesada, Dallas
Sarah Woodrick, Dallas
Sommerman & Quesada
Michele Boerder, Paralegal, Dallas
Hughes & Luce, L.L.P.
Advanced Evidence & Discovery Law Course
Dallas – Houston – San Antonio 2005
INTRODUCTION
Discovery is a tool for locating admissible evidence to ultimately prove your case. Discovery is comprised of two parts: what you give and what you get.
Managing discovery is a process of gathering information, determining relevance and utility, and being able to recall the information when it is needed. Managing discovery is like card cataloging books in a library - - and being able to locate information by author, by topic/subject, by date, etc.
The key to managing discovery materials, particularly document productions, is control - - control of the documents, and control of the process. You must know and control where the documents came from (the source), why they are important to your case, and what has happened to them during the course of litigation. Your lead paralegal can help you with this "control factor." Control involves continuing coordination and communication among all members of the legal team and client(s) group that work on Discovery. Whether you are an attorney in a solo, small firm or large firm environment, techniques and tools can help you manage discovery successfully.
Discovery Management includes:
PLANNING - What information needs to be captured and how; the timeframe for production and the resources (including staffing, vendor support) required to comply with the production deadline. Commemorate these items in a memo for future reference, and if working with a review team, for their guidance during the discovery process.
PULLING - Working with the client to canvass for and obtain documents (both hard copy and electronic) and ensuring a thorough search, and documenting the source.
PERUSING - Reviewing the documents/ materials and analysis of responsiveness and what is evidentiary (and maintaining uniformity in the analysis throughout the review process), both in producing materials and upon receipt of production from the opposing party.
PRIVILEGES - Determining what information will NOT be produced, and is protected by Privilege and the reasons supporting that legal determination, and maintaining uniformity in its application.
PRODUCTION the mechanics of production: coding, marking, organizing, hard copy vs. disk or electronic transfer, etc.
II.FORMS OF DISCOVERY
"Discovery" is the blanket term used for Depositions, Interrogatories, Requests for Production, Requests for Admissions, Request for Disclosure, Subpoenas Duces Tecum (Rule 192.1 T.R.C.P. and Rule 26(b) F.R.C.P. )1
Each type of discovery vehicle requires different management techniques.
Depositions Management
Few attorneys today use deposition summaries, other than for the purpose of a high level overview. For searching and retrieval, deposition transcripts are loaded into searchable programs (such as Summation or LiveNotes), and exhibits that have been imaged can be linked to the deposition for quick review.
Transcripts and exhibits can also be utilized in a "trial presentation" program (such as Sanction or Trial Director), which enables clipping of deposition transcript and video excerpts for use at trial, hearings or trial simulations. (note that at mock trials such trial presentation programs enable changing the presentation "on-the-fly" and testing those revisions with the mock jury for varying results.)
Most transcripts today also contain an index of words at the back of the deposition transcript for manual searching within depositions.
Tips for managing deposition materials:
a. Agree among counsel prior to depositions as to how exhibits should be marked (example: chronological numbering through all the depositions? or, start each deposition with "Exhibit 1" such as Doe-Exh.1) This decision may depend on what attorneys are taking the depositions, and if they are multi-track, etc.
b. Be prepared to advise the court reporter of how you want the electronic form of the transcript (your paralegal can provide this) including if you want the exhibits imaged and linked, and, if you are videotaping the deposition, if you want it digitized to the video. (see Deposition Order Form, Appendix 1)
c. "Real Time" Depositions allow the attorney to see on computer the words of testimony as the witness speaks and the court reporter takes the testimony. This is a cost of approximately $1.50 extra per deposition transcript page.
d. Make sure all depositions and exhibits are retained together. You may also want to set up a master set of exhibits in addition to exhibits maintained with each deposition.
e. Log all depositions (with exhibits) which means keep an index of all depositions taken (name/party/description of role in the case) and a list of the exhibits used during each deposition. You may also want to include in this index a column for issues or facts that are addressed by the witness(es). This log can become the beginning of a trial exhibit list.
2. Supplementation
The Rules require that experts' depositions must be supplemented when the answers change: "If an expert witness is ...under the control of a party, that party must amend or supplement any deposition testimony or written report by the expert, but only with regard to the expert's mental impressions or opinions and the basis for them." Tex. R. Civ. P. 195.6 The Rules define those areas which must be supplemented, and were intended to conform with prior case law. In re Colonial Pipeline Co., 988 S.W.2d 740 (Tex. 1998);); Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993). Nevertheless, this obligation to supplement the deposition should not be overlooked, as it may be a source of problems at trial. See Garcia v Spahn Health Systems Corp., 19 S.W.3d 507 (Tex. App. -- Corpus Christi, April 28, 2000, pet. denied); Foust v. Estate of Walters, 21 S.W.3d 455 (Tex. App. – San Antonio 2000, pet. denied).
Interrogatories
Under Level I and Level II discovery plans, each party is entitled to send 25 interrogatories to each other party. Tex. R. Civ. P. 190.2(c)(3); 190.3(b)(3). As a general rule, this means that each plaintiff and each defendant in each of their respective capacities is entitled to ask written questions. There are a limits on the number of "subparts" which can be submitted, so plan on each interrogatory being its own individual question. Input interrogatory questions and answers into a searchable database so that you can "search-and-find" for use at depositions, trial, and in trial exhibits. You can also use interrogatory answers in a case chronology or trial presentation.
1. Standard Sets, Questions and Answers
There may be no real need for the "standard set" of interrogatories. The basic questions relating to the identity and existence of persons with knowledge of relevant facts and expert witnesses are contained within the required disclosures under Tex. R. Civ. P. 194.2(e). While there may be a desire to generate a set of questions with impeachment quality answers, American Maintenance and Rentals v Estrada, 896 S.W.2d 212, 226 (Tex. App. -- Houston [1st Dist.] 1995, writ dism'd), many attorneys are now incorporating their disclosure responses into the interrogatory answers.
a. Avoiding problems with Supplementation
Because most Requests for Disclosure contain requests to identify fact/expert witnesses, and because most Requests for Disclosure are sent before, or contemporaneous with, Interrogatories inquiring into the same matters, it makes good sense to respond to both sets with an identical witness list (or exhibit list). Supplementation becomes much more manageable, and inadvertent omissions are avoided. The interrogatory answer should refer back to the list of witnesses or items produced in response to requests for disclosure.
Remember the obligation to timely supplement interrogatory answers (and other written discovery requests). Tex. R. Civ. P. 193.5. Consider a periodic letter such as:
"Enclosed is an updated list of persons with knowledge of relevant facts. Please consider this a supplemental response to your request for disclosure and interrogatories asking for this information. Please let me know immediately if you prefer a more formal supplementation."
If you have generated one list of potential witnesses in response to interrogatories and requests for disclosure, you can supplement the list without fear of omitting a witness in one document or the other.
b. Interrogatories Concerning Experts and Consultants
The Rules themselves prohibit the use of Interrogatories inquiring into the identity and opinions of Expert Witnesses. Tex. R. Civ. P. 195.1. As such, it is doubtful that interrogatories concerning these areas are of much help.
One area that should not be overlooked is the use of interrogatories inquiring into the existence, identity and work product of consultants whose material is reviewed or relied upon by expert witnesses. With the recent change to Tex. R. Evid. 703 and 705, interrogatories asking about these subjects may prove fruitful. See Stam v Mack, 984 S.W.2d 747 (Tex. App. -- Texarkana 1999, no pet. h.)(Court of Appeals affirmed trial court's decision to allow a testifying expert to explain that he had spoken to/with another consultant).
c. Interrogatories Concerning Insurance
Under Tex. R. Civ. P. 192.3(f) and 194.2(g), parties are entitled to know of "indemnity and insuring agreements". There may be no need to send interrogatories asking about this information, but consider questions concerning reservation of rights and the "eroded" amounts available. In re Senior Living Properties, L.L.C, 63 S.W.3d 594 (Tex. App. -- Tyler 2002)(Orig. Proc.).
2. Verification of Answers
Rules regarding verification of interrogatory answers (including supplemental answers to interrogatory answers) have been relaxed. The client need not verify answers listing the identity of individuals with knowledge of relevant facts, trial witnesses, and legal contentions. Tex. R. Civ. P. 197.2(d)(2). Supplementation should be much easier because the client need not verify the supplemental answers unless the original answers required signature under oath. Tex. R. Civ. P. 193.5(b); 197.2(d).
3. Use and Non-use at trial
The new Rules changed the case law with regard to the use of interrogatory answers for impeachment, see, American Maintenance and Rentals v Estrada, 896 S.W.2d 212, 226 (Tex. App. -- Houston [ 1st Dist.] 1995, pet. dism 'd); Thomas v. International Insurance Code, 527 S.W.2d 813,819 (Tex. Civ. App. -- Waco 1975, writ ref-d, n.r.e.), though some types of impeachment will still be possible. American Motorists Insurance Co. v. Evans, 577 S.W.2d 514 (Tex. App. -- Texarkana 1979 writ ref d. n.r.e). Interrogatory answers can be used only against the part answering them. ANA, Inc. v. Lowry, 31 S.W.3d 765 (Tex. App. -- Houston [1st Dist.] 2000, no pet. h.).
4. Daubert/Robinson challenges
With the increased use of Daubert/Robinson challenges, it may be helpful to use interrogatories to start laying the groundwork for responding to challenges to your expert witnesses. It makes sense to use interrogatories to identify those witnesses and opinions which your opponent may challenge. Sample interrogatories might ask:
INTERROGATORY NO. Please list those expert witnesses (if any) identified by whom you contend are not qualified to render opinions under the standards set forth in Robinson v E.I. Dupont Denemours, 923 S.W.2d 549 (Tex.1995), or in any subsequent opinion by the Supreme Court of Texas which you contend extends the holdings of Robinson.
INTERROGATORY NO. : If you contend that any opinion rendered by Dr. _____in his/her deposition is not "reliable" within the meaning of Robinson v E.I. DuPont Denemours, 923 S.W.2d 549 (Tex. 1995), or any subsequent opinion by the Supreme Court of Texas which you contend extends the holdings of Robinson, please state the substance of that opinion and describe the basis for your contention.
Courts are encouraging litigants to make their Robinson challenges early in the litigation and thus these interrogatories may help with the early identification of problem areas.. Maritime Overseas Corp. v Ellis, 971 S.W.2d 402, 414 (Tex. 1998)(Gonzalez, J., concurring); Hose v Chicago Northwest Transportation Co., 70 F.3d 968, 973 (10th Cir. 1994); Webster v Fulton County, 85 F.Supp. 2d 1375, 1376 (N.D. Ga. 2000)(Daubert challenge made at trial was not timely); Leaf v. Goodyear Tire and Rubber Co., 590 N.W.2d 524, 534 (Iowa 1999); DiPetrillo v. Dow Chemical Co., 729 S.2d 677, 687 (R.I. 1999); H. Brown, Procedural Issue under Daubert, 36 U. H. L. R. 1 133, 1142 (1999)(author is a Texas District Court Judge who strongly recommends Rule 104 pre-trial Daubert/Robinson hearings be scheduled early in the litigation). Evasive or non-responsive answers to legitimate interrogatories should prevent an opponent from mounting such a challenge. Tex. R. Civ. P. 193.6(a), and, at a minimum will help the trial court understand that the opponent is merely playing procedural games with the timing of the challenge.
Document Production Requests and Subpoena Duces Tecum Requests
As a general rule, these requests can ask for the production of items already in existence. Tex. R. Civ. P. 192.3(b); In re Colonial Pipeline, 968 S.W.2d 938 (Tex. 1998). Use them to ask for copies of contracts, Hoffman v. Trinity Industries, Inc., 979 S.W.2d 88 (Tex. App. -- Beaumont 1998, writ dism'd.); medical records, Tex. R. Civ. P. 194.2(j); insurance agreements, Miller v. King, 736 S.W.2d 255 (Tex. App. -- Beaumont 1987)(Orig. Proceeding); witness statements, In re Learjet, Inc., 59 S.W.3d 42 (Tex. App. -- Texarkana 2001)(Orig. Proceeding); and personnel files, In re Laverina Nursing Facility, Inc., 12 S.W.3d 566 (Tex. App. -- San Antonio, 1999)(Orig. Proceeding).
One interesting case is In re Guzman, 19 S.W.3d 522 (Tex. App. -- Corpus Christi 2000)(Orig. Proceeding), which held that requests for production under Tex. R. Civ. P. 196 could not be used to force one party to sign authorizations for the release of medical records, workers compensation files, or employment records.
1. Objections to Document Requests
A party asserting a privilege to defeat a request for production of documents accompanying a deposition notice must comply with Tex. R. Civ. P. 193.3. Strict compliance is not required, according to the Supreme Court in In re University of Texas Health Center, 33 S.W.3d 822 (Tex.2000), in which the objecting party responded to two (but not three) substantially identical document requests.
2.Organizing and Managing Requests
a.Create a Chart of the Requests ("cheat-sheet/short-cut" see appendix 2). This will help your review team learn the requests in a shorthand method.
b.Ensure that a thorough search is performed and document how the search was conducted. Where did the client search for responsive documents? What personnel were notified? Obtain a copy of the Client's Document Retention Policy if the Client is a business/ company. How did the document collection process take place (if the client does this rather than counsel). List the specific locale and personnel who were requested to look for and provide documents, and note their supervisors, if any. Note that for electronic documents and back-up systems, you may need to meet with the Information Technology personnel for the client. (see interview form, appendix 3;) such a form can document the search exercise as well as list the types of materials maintained by that person in event they become discoverable later.
c.Make several inquiries to follow up (clients frequently overlook potential sources). Clients also tend to interpret document requests narrowly and only in the context of how it applies to them. (Examples: executives produce their files but do not search those of their secretary ; a client produces documents from his/her office, but does not search for items taken home or in a briefcase) Remember to search files of a predecessor and also offsite/stored files and records, as well as inquire about electronic backup of deleted records. (see e.)
d.Use a document transmittal/control tracking sheet to manage receipt of documents and separate materials provided by the client or client's personnel. (See appendix 4)
e.Advise the client regarding production of emails and other electronic medium in addition to hard-copy documents. In some cases, production requests include back-up tapes, lap top data and desktop "deleted" items that may be recoverable. For some electronic discovery requests you will likely need the assistance of electronic forensic experts. (See: topics addressed in Electronic Discovery and Digital Evidence Institute, State Bar of Texas CLE March 31, 2004)
Requests for Disclosure
Request for Disclosure information (names, addresses, phone numbers, amount of damages, witness statements, etc.) (Rule 194 T.R.C.P.) and Initial Disclosures (Rule 26(a)(1) F.R.C.P.) can be managed similarly to Interrogatories and Request for Admissions in a searchable database.
The latest discovery innovation --a short, easily generated set of basic discovery is now explicitly approved by the rules. There are, however, some issues in interpreting the rules.
1. Damage Models are for Everyone
Under Tex. R. Civ. P. 194.2(d), a party seeking affirmative relief in the form of economic damages is required to summarize their damages model. Both the text of the Rule and its commentary make it clear that without an effective answer to this Request for Disclosure, the responding party is limited at trial.
A close reading of the Rule, however, reveals that all parties to the litigation must respond to the Request inquiring into the damages model. The Rule requires disclosure of "the amount and method of calculating economic damages." Tex. R. Civ. P. 194.2(d), but does not limit its application to those seeking damages. The comment makes it clear that the request for a summary applies irrespective of whether the party is seeking affirmative relief: "Paragraph (d) does not require a party ...to state a method of calculating non-economic damages. In the same example [of litigation arising from a car wreck], defendant would be required to disclose his or her denial of the speeding allegation and any basis for contesting the damage calculations." Tex. R. Civ. P. 194, Comment 2 (emph. added). Thus a party opposing a damages claim must describe its position with regard to economic damages with the same degree of detail and description imposed upon the party seeking affirmative relief. The failure to do so should severely limit the defense at trial. Tex. R. Civ. P. 193.6.
2. Supplementation
The rules clearly require that disclosure responses be timely supplemented. The Rules have taken much of the guess-work out of the timing and procedures for supplementing, Tex. R. Civ. P. 193.5, and informal on-going supplementation may work best. Simply create a list of Persons with knowledge of relevant facts in response to the initial request for disclosure, attach it as an exhibit to the response (and any corresponding interrogatory answer), and periodically update the exhibit. The single, updated exhibit should contain separate sections for party witnesses, non-party witnesses and experts. Then, as witnesses are added to the relevant sections, the list can be sent out with a cover letter identifying it as a supplement to both the Responses to Requests for Disclosure and the Answers to Interrogatories.
National Family Care Life Ins. Co. v. Fletcher, 57 S.W.3d 662 (Beaumont 2001) is an example of how inadequate disclosures can result in disastrous consequences. The defense was based upon statements contained in a series of letters sent to an insurance agent. The letters themselves were identified in response to requests for disclosure, but the merits of the defense were not mentioned. The trial court excluded this defense and would not allow testimony on the subject. The Court of Appeals reversed, holding that the disclosure of the letters themselves was sufficient to put plaintiff on notice of the substance of the defense.
Recent cases show that supplementation with regard to expert witnesses can still be problematic. In Snider v Stanley, 44 S.W.3d 713(Tex. App. -- Beaumont, June 1, 2001)(pet. denied.), the Court of Appeals affirmed the trial court's decision to exclude the defendant's only expert witness to contest liability. The Court held that the expert was not timely designated; he had been retained approximately 66 days before trial, but was not designated until the 30th day before trial.
In Elliott v Elliott, 21 S.W.3d 913 (Tex. App. -- Fort Worth 2000, pet. denied), one party identified her health care providers in response to an interrogatory, but did not designate them as expert witnesses. The Court of Appeals held it was an abuse of discretion to prohibit the witnesses from testifying on these grounds; the state of the pleadings and the fact that the witnesses had been previously identified eliminated any surprise or prejudice. This case involved a failure to properly respond to, and to supplement interrogatory answers, but the same principal should apply with regard to Disclosures.
Vingcard A.S. v. Merrimac Hospitality Systems, Inc., 59 S.W.3d 847 (Tex. App. -- Fort Worth 2001)(pet. denied) held that a discovery response identifying a potential expert witness and the topics of his opinions was insufficient under the disclosure requirements. The opposition was entitled to a summary of the opinions to be proffered, and the Court of Appeals held that the trial court erred in allowing the testimony at trial (though the error was harmless since other witnesses offered the same opinions).
E. Requests for Admissions
Insert Answers to Requests for Admissions into a searchable database and compare them to deposition testimony and Interrogatory answers. Check Requests for Admissions and Interrogatory answers to determine if they are consistent with deposition testimony.
Tip: Create a notebook of Interrogatory Answers, Requests for Admissions responses and Request for Disclosures information. This will be useful in preparing for depositions and later for trial. You may determine to have a hard-copy notebook or "electronic" notebook, or, utilize both forms.
STAFFING AND REVIEW MANAGEMENT
Each case is different, and should be managed differently. Management depends on factors such as:
The number of expected documents, (a few boxes? a roomful of boxes? boxes from different locations? a trailer load of documents?)
What type of documents, (repetitive forms? already in some organizational format? technical documents? Mostly paper documents or mostly electronic?)
Are your "documents" in non-document form, such as audio tapes or video tapes? These can be converted to files that can be played on a computer. Or, will there be over-sized materials such as maps, schematics, technical drawings? Or, physical objects?
What will need to be retrieved, (specific data? interpreted information? objective or subjective material?)
How it will need to be sorted, (by date? by name or witness? by issue?)
What are the economics of the case and client? What are the attendant expenses of copies, computerization, imaging, etc. and can the client/case sustain the costs? This may impact the initial retainer or, in contingency fee cases, the amount the firm will need to absorb in the initial stages of the case.
Management includes pre-planning and a commitment to spending time in this stage. Pre-planning will save time and money or if you don't do it, COST time and money overcoming problems later. The answers to these questions will help you evaluate what management tools to use. Make these decisions at the front end of the case so that it is done uniformly. For example, imaging only part of the documents would require future searches be performed on two sources and would not be cost-effective.
Many attorneys and clients initially believe that a case may not be large enough to warrant use of computer technology. Imaging today costs no more than photocopying and can eliminate the need for multiple sets of documents which conserves copying costs. A searchable database can usually be created and populated in a comparable time to that of a word processing index, but yield numerous sorting and retrieval capability. Even a "one-box" case can benefit from a database index .
Large cases benefit by use of technology by enabling tracking of the documents reviewed and whether they are responsive/produced or non-responsive and withheld. Documents that may not be initially responsive could become responsive in future discovery requests and capturing them on the front-end means costs and timesavings.
A. Training of Attorneys and Paralegals as to Issues
Have a team meeting to determine the strategy for collecting and reviewing documents. Explain the case overview and factual details, including what may ultimately be in an order of proof for the case. Make assignments and have a plan that can be documented by the team during the process (e.g., who is to review what, the schedule, deadline, etc.).
Determine the threshold for what is "Responsive" to discovery, and what may be the subject of objections. Train the team on how to correctly assess and mark the documents under these standards.
Privilege Claims and Application of Privileges: Have an attorney names list ready for the team before document review. (Populate a "pull-down menu" in the database with these names) Discuss with the team how privileged documents will be either redacted or withheld. For example, a letter from a lawyer to his client giving answers to legal questions will be a privileged document and withheld based upon attorney-client communication. However, one paragraph in a client memo that discusses advice from an attorney may be redacted out and the remainder of the information produced. Determining how to apply these decisions depends upon the leadership of the legal team and team training.
Have a procedure for checking uniform application of the instructions given to the team. Use "notes" in a database field , for example, for reviewers to comment or ask questions about a document. When decisions are made about treatment of a document, share the information among the team. Set up "instructions" that contains these situations and decisions and inform the reviewers with these decisions. You may also want to post them in a visible location in the review area, or in a portion of the database online.
B. Selection of Technology Tools and Pre-planning.
Use of any technology is an expense. However, technology in the management of discovery is one of the most cost effective tools used. Even cases with minimal documents will benefit from technology. Today, imaging costs are competitive with copying costs, (e.g. 13 – 15 cents). Technology can assist proving that discovery has been answered by linking questions/requests and answers, for example.
Web based and "hosted" databases/images allow multiple users and locations to access and work on the documents (such as Applied Discovery, Virtual Partner, etc.) This is very useful when large cases are handled by multiple law firms. Vendor-hosted databases such as these can also reduce the hardware needs of the law firm.
Imaging and coding (e.g. Litigators Notebook/Ipro). Imaging is scanning of documents or can be direct-imported into a viewer, and allows reviewers to see the material on a computer screen as they would in hard copy. Note that an image is not searchable. The image is like a photograph, it is not text. Text or documents scanned and OCR'd are searchable. Images need to be linked to a database in order to locate the image you need to find. With web-based database/imaging, multiple firms or client offices can utilize and review material at the same time.
C. Document production-capable
1. Bates numbering.
a. Determine a labeling convention -- using a "prefix" in the bates labeling scheme. This assists in immediate identification of which party's document is being used. The prefix can also be used to indicate a source. For example, XYZ000001 could be used to show the document was produced by "XYZ" party, or, XYZ counsel might choose to utilized "XYZ100000" for XYZ company – produced from XYZ Dallas office, and "XYZ200000" – produced from XYZ Houston office, etc. or to indicate parent company/subsidiary company productions.
b. At the time of bates labeling, determine any confidentiality designation to be used. Usually this is set forth in a Protective Order. ("Confidential," "Attorney's Eyes Only," "Sensitive," etc.)
c. Use of "Privileged" mark for materials that are privileged. Many attorneys/paralegals still refer to "Attorney Work Product" and "Attorney/Client Communication" but note Rule 192.5, T.R.C.P. defining "Work Product" which is inclusive:
(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives including the party's attorneys, consultants, sureties, indemnitors, insurers, employees or agents.
d. A privilege slip sheet in colored paper (see Appendix 5) is helpful in isolating privileged hard copy documents to insure they are not inadvertently produced
2. Redactions
a. Sometimes a document contains both responsive and non-responsive and/or privileged information. Redactions (covering up of the non-responsive or privileged portions) are required. This can be done electronically on an image of the document, or done manually (with cover tape or paper) and recopied. Always maintain the original of the redacted version of the document. If a redacted document is contested, you may need to provide it to the Court in camera, and consequently, the Court could order production in unredacted form. Being able to provide the un-redacted form of the document is essential.
3.Privilege Logs. Privilege Logs are prepared based on privileges asserted by the legal representatives. (See appendix 6) Rule 193.3(b)(1) T.R.C.P. requires that that the log of withheld material or information (due to privilege) “describes the information or materials withheld that, without revealing the privileged information itself, or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege."
a. In order not to reveal privileged information, and yet support the privilege claimed, it is important to carefully craft the privilege log. For example, the "description" field of the document database or the "title" field should probably not be used for the privilege log because it likely contains specific information that is being protected by the privilege. When creating a privilege log from a database, ensure that there are database fields that can capture why the document is privileged. For example, a coded document may have been an attachment to a letter sent to an attorney for legal advice and therefore is privileged. If the document did not have a date, addressee or signator, it would not be obvious from the database fields it too was privileged, unless you code a field to so designate it.
b.Remember that document collections sent to or from an attorney that are privileged because they request or receive legal advice, could be responsive as stand-alone documents and should be copied and produced separately, and not a part of the privileged packet format.
c.The rules require that a privilege log must be generated in response to a specific request. Tex. R. Civ. P. 193.2(b). As a practical matter, a standard Request for Production should include asking for such a privilege log. The time limit for generating a privilege log is only fifteen (15) days, Tex. R. Civ. P. 193.2(b), so the Request for Production should ask that the Log be provided on a timely basis. A letter should be sent asking that the Log be periodically supplemented.
METHODS OF ORGANIZATION
A. Issues
Preparation of Issue or Topic binders are always helpful in managing case information and linking issues to timelines, witnesses, and documents. These should be maintained throughout the course of the case and can form the basis for an Order of Proof outline. At trial time, these binders will become very helpful in preparing the exhibit lists and any rebuttal exhibits.
Electronic databases with images can "build" these binders technologically, to keep in electronic format, or, can print the materials in hard copy for review.
B. "Hot Documents"
Preparation of hot document binders are invaluable. During the course of the litigation, they usually become exhibits to depositions and dispositive motions. At the trial preparation stage, they become trial exhibits and rebuttal exhibits.
As with issue materials, these can be kept either electronically, or in hard copy form. In either, indicate if the document is "hot" because it is "good" or "bad" evidence for your case.
C. Witness Materials
Preparation of witness binders (in hard copy or electronically) usually contain documents and materials that the witness authored, received, or was copied on, in chronological order. This can be accomplished through use of the technology by preparing database searches that retrieve and print the queried documents in date order. Documents reviewed for this should come from all productions and discovery tools.
A list of all potential deponents and key figures should be prepared at the time of the first production. Binders should be prepared for each individual and updated with each production made and received.
These witness and potential deponents binders become the starting point for the attorney's preparation for depositions and later, for trial.
D. Experts
It is important to manage the information and any materials going to or received from an expert. This is true whether the expert is a testifying or consulting expert, however items exchanged with a testifying expert will likely become part of production material. (Remind testifying witnesses that this includes emails and they should consider that emails may result in production material). Sometimes a consulting expert is later designated as a testifying expert. Counsel must be able to document all materials provided to and reviewed by the expert.
V. CONCLUSION
Management of discovery should ultimately aid the lawyer in proving his or her case. Without the ability to recall and utilize evidence garnered through discovery, the entire discovery process is useless. Discovery yields the bases for facts that will win or lose your case. Adhering to assessment, planning, implementation, communication and team management processes will result in successful management of discovery for a more productive trial (or settlement). Managing discovery gives the lawyer the resources for successful litigation.
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