Forms of Pretrial Discovery in the Auto Property Damage Case Mark Demian and Jeffrey Dubin Javitch, Block & Rathbone LLP

Policy Considerations Involving Discovery Preserve right to prepare for trial Prevent attorney from taking undue advantage of another Ensure all claims and parties are involved

Forms of Discovery Witnesses Statements Insurance Citations Police Report Experts Traffic Camera Electronic Data Recorder Employment Assets Bankruptcy Interrogatories – Addressing the Basics

Forms of Discovery Interrogatories – Focusing on Credibility Other Accidents Crimes of Dishonesty / False Statements Medication

Forms of Discovery Anything relied upon to answer interrogatories Recorded or Sworn Statement Photographs HIPAA releases Data - electronically stored Expert Reports Requests for Production

Forms of Discovery Request for Admissions Narrow issues Obtain summary judgment on unanswered admissions

Forms of Discovery Permission to enter upon land for inspection or testing Inspect Motor Vehicle Electronic Data Recorder Recent trend – Spoliation When no Opportunity to Inspect

Forms of Discovery Depositions upon oral or written examination Most effective Dispositive Motion Evaluate witnesses demeanor for trial Impeachment Use at trial when deponent “unavailable” High cost

Forms of Discovery Physical and Mental Examinations Sudden Medical Emergency Defense Substantiating Injury Claim

Forms of Discovery Subpoenas - Non party Documents Deposition

Answering Discovery Objections & Protecting the Record Irrelevant, inadmissible and not reasonably calculated to lead to admissible evidence Overbroad or Ambiguous Seeks a Narrative Response Seeks legal work product or legal conclusion

Answering Discovery Verified Interrogatory Responses Appropriate Person Claim Representative vs. Subrogation Representative

Discovery Disputes Tactic to Apply Pressure Trial Preparation Materials Must “show good cause” for these materials unless seeking opposing party’s own statement Efforts to Resolve by Counsel

Informal Discovery – Self Help No requirement to notify opposing side Visiting accident scene Canvass neighborhood for witnesses Visiting repair shop Inspecting motor vehicles Obtaining light sequences

Practice Considerations in Discovery Electronically-stored information Receiving party may try to avoid by showing “undue burden or expense” Requesting party may show “good cause” nonetheless

Practice Considerations in Discovery Factors court weighs when determining “good cause” Whether requesting party has had an ample opportunity through discovery to obtain information sought Whether burden outweighs benefit, considering relative importance of material, amount in controversy, parties’ resources, importance in resolving issues

Factors court weighs when determining “good cause” Unreasonably cumulative Whether can be obtained through less burdensome or less expensive source

Deposition ACE adjuster ….already in progress.

Expert Can discover identity of experts Can discover subject matter of expert’s testimony through Interrogatories Cannot discover facts known or opinions held unless undue burden or hardship to obtain opinions on its own Deposition Court Requirement Practice Considerations in Discovery

Claims of privilege/protection of trial preparation materials Privilege logs Protective orders After reasonable efforts to resolve without court intervention Protect from annoyance, embarrassment, undue burden or expense

Practice Considerations in Discovery Protective orders Court may rule: Discovery not be done Discovery done on specified terms Discovery done by method other than asked by requesting party Limit scope, presence of certain parties, seal

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