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Introduction
Any seasoned litigator will tell you that an Effective Discovery
Plan (EDP) is critical to ensuring that you are fully prepared to try the case
and will avoid any surprises during trial (at least as far as your case
preparation is concerned). To that
end, it is important to note that there is no “one size fits all” discovery
plan, however, there are some common steps you will always want to take.
As
with the case itself, your discovery plan should be specifically tailored to
the type of case. While some boiler-plate demands are unavoidable, your discovery
demands must be drafted in a way that they will help you achieve your
deposition objectives. Consulting the Pattern Jury Instructions (PJI) is an
excellent way to help you achieve your deposition objectives. Well-drafted,
case specific, discovery demands will immediately apprise your adversary(s)
that you are well prepared and will zealously advocate for your client.
The CPLR and Discovery
The lifeblood of the discovery process is Article 31 of the Civil
Law Practice and Rules (CPLR). CPLR Section 3101 states in part that:
“(a) Generally. There shall be full disclosure of all matter
material
and
necessary in the prosecution or defense of an action…”
[Civil
Law Practice and Rules, Section 3101].
Overall,
New York courts have interpreted
the “material and
necessary: language very broadly noting that the test is based on “relevance” and :usefulness”, [Allen
v Crowell Collier Publishing Co., 21 NY 2d 403,, (1968)].
CPLR
Section 3102(a) outlines the different types of disclosure devices available
which include; depositions (§§ 3107 and 3109),
interrogatories, (§§ 3130-3133), Demands for Addresses (§ 3118), Demands for
Discovery and Inspection of Documents (§ 3120), Demands to enter
premises for inspection (§ 3120), Physical and
Mental Exams(§ 3121), Requests for
Admissions (§ 3123).
Exceptions
Despite the fact that courts generally favor
broad discovery, some matters are not discoverable no matter how “relevant” or
“useful”. The following matters are excluded:
1.
Privileged Matters
2.
Attorney Work Product (trial strategy notes and analysis)
3.
The name of an expert in a Medical Malpractice case (IS THIS STILL
TRUE?), See CPLR § 3101(d) for
what IS required.
Protective
Orders
CPLR § 3103 deals with Protective Orders which may be issued sua sponte by the court, or upon motion of a party seeking to
have a demand stricken. The test is to “prevent unreasonable annoyance, expense,
harassment, disadvantage, or other prejudice to any person or the courts” [CPLR
§ 3103].
Objections
CPLR § 3122 requires a party to object with
“reasonable particularity” within 30 days of being served with the
objectionable demand. The objecting party must state the type of document being
withheld, the general subject matter of the document, the date of the document,
and/or sufficiently identify the
document for subpoena duce tecum purposes.
Motions to Compel
CPLR
§ 3124 permits a party to make a motion to compel for failure to comply with a
proper discover demand, and, CPLR § 3126 outlines the penalties the court may
impose which include:
1
issuing an order compelling disclosure;
2
issuing an order precluding the non-complying party form testifying or
offering evidence at trial;
3
issuing an order striking the non-complying party’s answer, which is rare
due to its drastic nature.
CPLR § 3130 prohibits the use of depositions and
interrogatories in most cases, but permits them in matrimonial actions. They are also permitted in products
liability cases so long as the interrogatories are limited to the cause of
action [Ribley v Harsco Corp., 57 AD 2d 740 (1977) CHECK SITE.
Sample
Interrogatory Questions: Products Liability-Dangerous Drug Cases
1 State name, address,
occupation, and (office held if a
defendant
in a corporation);
2 Did the defendant, or any agent/employee
thereof, maintain, prepare, service, install , advertise, distribute, sell.,
package, assemble, manufacture, design, or otherwise come into contact with the
product. If so, describe your role with particularity.
3 If the answer to any of the preceding questions
was yes, state the date it was sold and the facility it was manufactured and/or
packaged in;
4 Did the defendant manufacture similar products
in the past? if yes, state the generic and brand name of the similar product;
5 The name, address, and title of the person
responsible for producing the product;
6 Identify all pre-,market testing done on the
product or similar products;
7 The place and person responsible and purpose of
such testing;
8 The number of people and/or animal involved;
The results of such testing;
9
Provide the name
and last known address of each person responsible for record keeping;
10
Was the product
or any similar product ever recalled or taken off the market, if so when and
under what circumstances;
11
Whether the FDA
has ever required warnings or contraindications to be added to the product? If
so, describe in detail the date and circumstances;
12
Did the
defendant consult with anyone regarding the product’s safety? If so, who and
when, and what were the results of the consultation?;
13
Identify by
name, address and title, any medical doctors or PHD’s employed by the
defendant who evaluated the
product;
14
Detail all steps
in the manufacturing process of the product;
15
Identify all
tests performed in the quality control of the product;
16
Identify all
marketing taken regarding the product including the media and dates;
17
Identify all
labels attached to the product and their purpose.
18
Identify the
subject matter of any lawsuits filed for injury or death related to the
product;
Elevator
Cases
1
Request board
meeting minutes discussing the elevator;
2
Request contract
between elevator company and building;
3
Request all work
records on subject elevator for ten years before accident;
4
Request all
correspondence between the elevator company and building on the subject
elevator for ten years before accident;
5
Request all
estimates obtained from any and all contractors;
6
Request a copy
of the examining report:
7
Request a copy
of the original filing plan and amendments;
8
Request all
inspection, repair, service and maintenance records for five year prior the
accident date;
9
Obtain all
insurance policies in effect on accident date
Medical
Malpractice Cases
1
Obtain all
statements, videos, surveillance tapes. photos, and recordings of the
plaintiff;
2
Any and all
records of the plaintiff in the defendant’s possession (medical, billing, invoices etc);
3
Incident/accident
reports;
4
The Curriculum
Vitae of the defendant physician;
5
Rules and
regulations for labor and delivery area (or other pertinent area);
6
Any contracts
with the anesthesiologist;
7
The names.
addresses, date of birth of all anesthesiologists involved on occurrence date
Labor
Law Cases
All
records including:
1
Trade payment
breakdown records;
2
Safety meeting
minutes;
3
Job file;
4
Prior
complaints/accidents;
5
Plans,
specifications, and diagrams relating to scaffolds at job site;
6
Daily logs and
activity reports;
7
Contracts,
architectural drawings;
8
Insurance
policies and endorsements;
9
Plans and specifications;
10
Photographs of
equipment plaintiff was using;
11
Any safety rules
issued;
12
The OSHA file
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