Articles Posted in Discovery

The Colorado Supreme Court has issued an opinion in Aloi v. Union Pacific R.R.

This is the opening paragraph of the opinion: “Petitioner Frank Aloi brought a personal injury action against Union Pacific Railroad (UP). Prior to trial, UP destroyed documents relevant to the litigation. As a sanction for spoliation of evidence, the trial court instructed the jury it could draw an inference that the evidence contained in the destroyed documents would have been unfavorable to UP. The trial court gave the adverse inference instruction three times, one time interrupting a crossexamination to provide the instruction. The jury returned a verdict for Aloi, and UP appealed. The court of appeals reversed the trial court’s judgment. The Supreme Court granted certiorari.”

The holding? “We hold that the trial court did not abuse its discretion by providing the jury with an adverse inference instruction as a sanction for the spoliation of evidence where it found that UP willfully destroyed relevant evidence, which otherwise naturally would have been introduced at trial. Second, we hold that the trial court did not abuse its discretion by repeating the adverse inference instruction because the trial court addressed appropriate objections and articulated the reasoning for its decision; nor did the trial court abuse its discretion by interrupting the crossexamination because it acted to remedy prejudice and as a result did not depart from the required impartiality so as to deny the defendant a fair trial.”

I was talking with some lawyers lately about an increasing problem of discovery abuse, particularly during depositions. Apparently some lawyers don’t understand the rules or, if they do, they don’t care about them.

Here is an interesting Order entered in a case that put the hammer down on a lawyer who the Court determined had not acted appropriately during depositions. Download file

Do you have any Orders you would like to share? Trial judges need to know that other trial judges have taken aggressive action to stop what they have determined to be inappropriate conduct and the best way to demonstrate that is a copy of an order. If you have such orders, fax or email them to me and I will post them so that other lawyers may utilize them.

To what extent may a party discover communications between an oppsoing party and its expert witness? The Supreme Court of Rhode Island recently addressed this issue in Crowe Countryside Realty Associates Co., LLC v. Novare Engineering Co. (For some reason I cannot get a good link to the opinion so you will have to track it down on the Rhode Island Supreme Court website, Westlaw or Lexis.)

Here is a handy summary of the 19-page opinion: “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 clients’ trials. Permitting full disclosure
of 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. In our opinion, it is the disclosure of just such information that Rule 26(b)(3)’s dictation of the work-product privilege was intended to prevent. … We therefore hold that the clear language in the second sentence of subdivision (b)(3) requires that a court protect all core or opinion work product of an attorney, whether or not shared with an expert. We believe that this command to courts, that they “shall protect” opinion work product, was intended to apply to all discovery requests of materials prepared in anticipation of litigation because of the admonition’s location in the general portion of Rule 26 applying to all discovery. See Rule 26(b)(3).”

The opinion was released February 2, 2006.

One of the plaintiffs in this case (Kelly) was injured in a car wreck and had “soft tissue” injuries. The defense sought and was granted a Rule 35 examination by a doctor of its chosing. The doctor opined that the plaintiff “was magnifying her symptoms and neuropsychological testing/MMPI should be considered to assist in determining the level of symptom magnification.”

The defense asked for a neuropsych evaluation and the court granted it over plaintiff’s objection. Plaintiffs were permitted an interlocutory appeal.

Rule 35 examinations may be ordered for good cause shown when physical or mental condition has been put in controvery. The plaintiffs argued that the defendant “failed to affirmatively show that [the subject plaintiff] has put her mental condition in controversy and that [the defendant] has good cause for requesting her to undergo neuropsychological testing.”

Here is an interesting article tilted “Understanding U.S. Electronic Discovery and “Best Practices” Therefore” written by Michael Kaminski. It will give you a good idea of the way major law firms are advising their clients on discovery and retention of electronic evidence.