Alternatives to Written Discovery

Transcription

1 Alternatives to Written Discovery Russell Taber Riley Warnock & Jacobson PLC

2 Overview Witness Interviews Internet Research Public Records Search Private Investigator Rule 31 Depositions Upon Written Questions Rule 34 Entry upon land for inspection Inspection of opponent s computer system? Rule 35 Physical and Mental Examination of Persons

3 Witness Interviews! Person represented by counsel TRPC 4.2! Unrepresented person TRPC 4.3! Former employees! Cmt. 4.2[7]! Sherrod v. Furniture Center, 769 F. Supp. 1021, 1022 (W.D. Tenn. 1991)

4 Internet Research! Social media! Google! Publications! Better Business Bureau! Etc.

5 Public Records Search! Legal limitations:! Gramm-Leach-Bliley Act! Driver s Privacy Protection Act! State voting laws! Uses that may be permissible:! Detecting fraud! Locating individuals! Engaging in law enforcement activities

6 Private Investigator! Potential uses:! Locate people! Locate assets! Divorce matters! Cause of fire or accidents! Licensure in TN

7 Authority to Conduct Discovery! Tenn. R. Civ. P Discovery Methods - Parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission.

8 Rule 31 Depositions Upon Written Questions Rules Any party may take the testimony of any person, including a party, by deposition upon written questions Tenn. R. Civ. P May be used to the same extent as an oral deposition

9 Rule 31 Procedure Written questions to be served upon every other party with notice Can include an entity, Rule 30.02(6) 30 days after service, a party can serve cross-questions 10 days after service of cross-questions, a party may serve redirect questions 10 days after service of redirect question, a party may serve recross questions

10 Strategic Considerations for Rule 31 Benefits May be used with non-party witnesses Expense and time friendly -Avoid travel -Consider for routine and/or basic information Limiting Factors (why rarely used) Pre-determined script More than 50 days advance planning Follow-up question limitation

11 Rule 34 Entry Upon Land for Inspection Rules Rule Any party may serve on any other party a request (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served Tenn. R. Civ. P As provided in Rule 45, a person not a party can be compelled to permit an inspection. Tenn. R. Civ. P

12 Strategic Considerations for Site Inspections! When do I consider a site inspection? - Property damage case; premises liability case; boundary dispute; personal injury claim, etc.! Benefits - Potentially low-cost - Permits first-hand inspection - A picture is worth a thousand words! Limiting Factors - Expert assistance needed? - Timing has there been a change of the site? - Who is taking pictures?! How do you get them into evidence at trial?

13 Rule 34 Inspection of Opponent s Computer System! 2009 Advisory Commission Comment: no routine right of direct access to a party s electronic information system Courts should guard against undue intrusiveness resulting from inspection or testing such systems! John B. v. Goetz, 531 F3d 448 (6th Cir. 2008): setting aside orders permitting imaging by plaintiffs computer expert of the computers of defendants and their employees

14 Rule 35 Physical and Mental Examinations! Rules ! When the mental or physical condition of a party is in controversy, the court may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner... Tenn. R. Civ. P

15 Rule 35 Procedure! Upon order granting motion for good cause, OR! By agreement of the parties! Refusal what will the court consider - Roach v. Dixie Gas Co., 371 S.W.3d 127 (Tenn. Ct. App. 2011) Explores in controversy / good cause requirements Complaint may create controversy

16 Rule 35 Procedure (continued) good cause (1) Party not yet had a medical exam and has condition in controversy; (2) Exam done and medical records available but expert conclusions are contrary to other expert opinions; (3) Moving party expert believes medical records are materially incomplete; or (4) Moving party expert disagrees with methodology of party whose condition is in controversy. Roach, 371 S.W.3d at 145

17 Rule 35 Examination Strategic Considerations! Benefits - First-hand examination - You can choose your expert! Limiting factors - Cost factor if motion required - Timing when do you have it done? - Be prepared to produce your expert s report to the other side. Tenn. R. Civ. P

18 Similar Counterparts in Federal Court! Fed. R. Civ. P. 31 Depositions by Written Questions! Fed. R. Civ. P. 34 Entering Land for Inspection! Fed. R. Civ. P. 35 Physical and Mental Examinations

19 Summary! Informal approaches can be less expensive than written discovery! Not well known rules! Timing of use is important in litigation planning

20 Questions? Russell Taber (615)