DOCSLIB.ORG

2019 Florida Handbook on Civil Discovery Practice

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
2019 Florida Handbook on Civil Discovery Practice Florida Conference of Circuit Judges Hon. Angela J. Cowden, Chair Conference of County Court Judges of Florida Hon. David L. Denkin, President Trial Lawyers Section of The Florida Bar Mindy McLaughlin, Chair TLS Discovery Handbook Committee Nick Mizell, Editor and Chair Hon. Elizabeth Rice Hon. Ralph Artigliere John Williams Prof. William Hamilton Rachael Loukonen Weston F. Smith Kim Ashby Joseph “Skooter” Kinman PREFACE In 1994, the Trial Lawyers Section of The Florida Bar, the Conference of Circuit Judges, and the Conference of County Court Judges formed a joint committee to provide a forum for the exchange of ideas on how to improve the day-to-day practice of law for trial lawyers and trial judges. At the committee’s first meeting, it was the overwhelming consensus that “discovery abuse” should be the top priority. The original handbook and the later editions are the result of the continued joint efforts of the Trial Lawyers Section, the Conference of Circuit Judges, and the Conference of County Court Judges. It is intended to be a quick reference for lawyers and judges on many recurring discovery problems. It does not profess to be the dispositive legal authority on any particular issue. It is designed to help busy lawyers and judges quickly access legal authority for the covered topics. The ultimate objective is to help curtail perceived abuses in discovery so that the search for truth is not thwarted by the discovery process itself. The reader should still do his or her own research, to include a review of local administrative orders and rules. The first edition of this handbook was prepared in the fall of 1995. This 2019 (seventeenth) edition updates the handbook through December 2018. TABLE OF CONTENTS Chapter 1: Discovery Standard and Expectations ................................................. 1 Chapter 2: Preservation and Spoliation of Evidence ............................................. 3 Preservation .............................................................................. 3 Safe Harbor for Electronically Stored Information ..................... 5 Spoliation ................................................................................... 6 Sanctions ................................................................................... 7 Chapter 3: Electronic Discovery ............................................................................ 10 The Duty of Electronic Discovery Competence .................................... 10 Law, Policy, and Principles of Electronic Discovery ............................. 11 Protecting Client Confidences and Data .............................................. 19 Duties of Attorney and Client Regarding Preservation of ESI .............. 20 Florida’s “Safe Harbor” Provision .............................................. 27 Conferring with Opposing Counsel ...................................................... 27 Key Word Search, Relevancy and Scope of Discovery ...................... 29 Collection and Review of ESI ............................................................... 31 Framework for the Trial Lawyer Facing E-Discovery ........................... 33 Requesting Production and Making Production of ESI ........................ 38 Production of ESI Pursuant to Subpoena ............................................ 41 Discovery of Social Media ESI ............................................................. 42 Discovery of Electronic Media and Health Records ............................. 43 Inspection of Opposing Party Devices ................................................. 45 “Self-Help” Discovery ........................................................................... 48 Ten Practical Steps for Handling Electronic Evidence ......................... 51 Conclusion ........................................................................................... 54 Chapter 4: Written Discovery Practice ................................................................... 55 Documents Requested ........................................................................ 55 Duty of Good Faith and Due Diligence ...................................... 55 Formulating Requests for Documents ....................................... 55 Use of Form Requests............................................................... 55 Reading and Interpreting Requests for Documents ................... 56 Contact When a Document Request is Received ...................... 56 Responding to Document Requests .......................................... 57 Objections ................................................................................. 58 When Production is Limited by Interpretation ............................ 59 Supplementation of Document Production ................................ 60 Claim of Privilege ...................................................................... 60 Oral Requests for Production of Documents ............................. 61 Location of Production ............................................................... 61 Available for Copying ................................................................ 61 Manner of Production ................................................................ 62 Listing and Marking ................................................................... 62 Copying ..................................................................................... 63 Scanning ................................................................................... 64 Later Inspection ......................................................................... 64 Interrogatories ...................................................................................... 64 Number and Scope of Interrogatories ....................................... 64 Answers ..................................................................................... 65 Objections ................................................................................. 66 Claims of Privilege ..................................................................... 67 Contention Interrogatories ......................................................... 67 Reference to Deposition or Document ...................................... 67 Interrogatories Should be Reasonably Particularized ................ 68 Producing Records in Lieu of Answering Interrogatories ........... 68 Answering Objectionable Interrogatories ................................... 69 Requests for Admission ....................................................................... 70 Number and Scope for Admission ............................................. 70 Responding to Requests for Admission..................................... 70 Objections ................................................................................. 71 Asserting Fifth Amendment Privilege ........................................ 71 Amending Responses to Request for Admission ...................... 72 Chapter 5: Proper Conduct of Depositions ............................................................ 73 Objections ............................................................................................ 74 Proper Form of Objections ........................................................ 74 Speaking Objections ................................................................. 75 Examinations ....................................................................................... 76 Proper Responses to Improper Conduct .............................................. 77 Deposition of Corporate Representative(s) .......................................... 78 Conclusion ........................................................................................... 79 Chapter 6: Expert Witness Discovery .................................................................... 80 I. Introduction ....................................................................................... 80 II. Discovery From a Party ................................................................... 81 A. Retained Experts ....................................................................... 81 1. Opinion Discovery ............................................................... 81 2. “Financial” or “Litigation Bias” Discovery .............................. 83 3. “Relationship Bias” Discovery .............................................. 85 B. Consulting Experts ................................................................... 88 C. Non-Party Medical Providers..................................................... 89 1. “Pure” and “Hybrid” Treating Physicians .............................. 89 2. Opinion Discovery ................................................................ 90 3. “Financial” or “Litigation Bias” Discovery .............................. 91 4. Relationship Bias” Discovery ............................................... 94 D. LOP Providers ........................................................................... 95 1. Opinion Discovery ............................................................... 96 2. “Financial” or “Litigation Bias” Discovery .............................. 97 3. “Relationship Bias” Discovery .............................................. 97 III. Discovery Served Directly on the Experts ....................................... 97 A. Retained Experts ....................................................................... 97 1. Opinion Discovery ............................................................... 97 2. “Financial” or “Litigation Bias” Discovery .............................
Load more

Recommended publications
  • Compulsory Counterclaim Committee
    Report of Boyd-Graves Conference Compulsory Counterclaim Committee Members of the Committee to Study a Proposal to Adopt a Compulsory Counterclaim Rule are Stuart Raphael, Ham Bryson, Bob Mitchell, David Anthony, Jack Costello, Kent Sinclair, Lisa O’Donnell, Bill Mims, and Robin Wood, Chairman. The Committee has met thrice by conference call: on March 25, 2008, April 30, 2008, and May 22, 2008. In the initial conference the Chairman polled members of the Committee to determine if there was a consensus among members of the Committee in favor of a compulsory counterclaim. Seven members of the Committee said they were in favor of a compulsory counterclaim, and two members of the Committee expressed reservations about a compulsory counterclaim rule. In response to an inquiry about a compulsory counterclaim rule in other states, Kent thought that over 40 states had adopted a compulsory counterclaim rule. The Chairman asked members to state their reasons for their position. Those members who were in favor of the rule felt that it was good public policy for all claims arising out of the same transaction or occurrence to be joined in one action. A compulsory counterclaim rule promotes judicial economy and efficiency. Under Rule 1:6, the plaintiff is required to join all claims that arise out of an identified conduct, transaction or occurrence, or later be barred from bringing a second or subsequent action against the same opposing party (parties) arising out the same conduct, transaction or occurrence. The adoption of a compulsory counterclaim rule would require the opposing party to state a claim arising out of the conduct identified in the complaint, crossclaim, or third party claim.
    [Show full text]
  • Commencement of a U.S. Civil Lawsuit Pleadings, Jurisdiction and Venue
    Commencement of a U.S. Civil Lawsuit Pleadings, Jurisdiction and Venue July 18, 2016 Andre K. Cizmarik, Counsel IP Summer Academy 2016 Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Overview of Litigating in the United States • Types of Courts • Pre-Complaint Investigation • Complaint – Filing of Complaint – with Court – Service of Complaint – on Defendant • Pre-Answer Motions • Answer – Responses – Affirmative Defenses – Counterclaims – Cross-claims • Discovery • Pre-Trial Motions • Trial • Appeal 2 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Federal Courts in United States • United States Supreme Court (Highest Appellate Court) • United States Court of Appeals (Intermediate Appellate Court) • 13 Circuits throughout the United States, typically consisting of several states and/or U.S. territories – Law can be different in each Circuit until the Supreme Court speaks on the issue • Federal Circuit – handles appeals of patent cases, both arising from the district courts and from the International Trade Commission (ITC), as well as appeals from the Patent Trial and Appeal Board (PTAB); appeals from the Federal Circuit are heard by the Supreme Court, at the latter's discretion. • D.C. Circuit – handles appeals of some administrative agencies, e.g., Federal Communications Commission; does not handle patent appeals from the ITC. • United States District Courts (Trial Court) • One or more district courts in each of the 50 states, as well as the District of Columbia, Puerto Rico, U.S.
    [Show full text]
  • About Vitality
    About Vitality At John Hancock, we’re taking a whole new approach to life insurance. Now, you can save money and earn great rewards by simply living a healthy life. In order to do this, we’ve partnered with Vitality, the global leader in integrating wellness benefits with life insurance products. Together, we’re helping transform the life insurance industry. Leading the Way The Vitality Group (TheVitalityGroup.com) is a member of South Africa-based Discovery Limited, a leading international financial services organization. The company has an established mission of building healthier societies throughout the world. With more than 17 years of experience and over 3 million members, Vitality offers a global perspective by partnering with companies in the United States, the United Kingdom, South Africa, China, Singapore, and Australia. Vitality’s innovative and evidence-based approach delivers high levels of engagement, sustained results, and top quality data. They offer an interactive online platform personalized for individual members. It encourages positive, sustained behavior change by offering a combination of knowledge, access to health and well-being partners, and incentives that increase with a participant’s level of engagement. How the Program Works Members start with an online Vitality Health Review (VHR) that identifies their relative risk factors and provides them with a Vitality AgeTM, a scientifically calculated representation of their risk-adjusted age. The VHR and Vitality Age make it easy for members to understand the impact their current behaviors may have on their health. The program then rewards them for living well and making healthy improvements to their lifestyle.
    [Show full text]
  • Can a Subsequent Change in Law
    Hastings Law Journal Volume 60 | Issue 5 Article 3 1-2009 Can a Subsequent Change in Law Void a Marriage that Was Valid at Its Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex Marriages Lois A. Weithorn Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Lois A. Weithorn, Can a Subsequent Change in Law Void a Marriage that Was Valid at Its Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex Marriages, 60 Hastings L.J. 1063 (2009). Available at: https://repository.uchastings.edu/hastings_law_journal/vol60/iss5/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Can a Subsequent Change in Law Void a Marriage that Was Valid at Its Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex Marriages Lois A. WEITHORN* INTRODUCTION On May 15, 2008, the California Supreme Court held that California's prohibition of same-sex marriage violated the equal protection and due process clauses of the California Constitution.' In re Marriage Cases consolidated several legal challenges to the two California statutes that limited marriage to a union of a man and a woman.' The court's holding removed state restrictions regarding the * Professor of Law, University of California, Hastings College of the Law.
    [Show full text]
  • What Is a Summary Judgment Motion? Notice for Parties Who Do Not Have a Lawyer
    What is a Summary Judgment Motion? Notice for Parties Who Do Not Have a Lawyer A summary judgment motion was filed in your case. A summary judgment motion asks the court to decide this case without having a trial. Here are some important things to know. What is summary judgment? Summary judgment is a way for one party to win their case without a trial. The party can ask for summary judgment for part of the case or for the whole case. What happens if I ignore the motion? If you do not respond to the summary judgment motion, you can lose your case without the judge hearing from you. If you are the plaintiff or petitioner in the case, that means that your case can be dismissed. If you are the defendant or respondent, that means the plaintiff or petitioner can get everything they asked for in the complaint. How do I respond to a summary judgment motion? You can file a brief and tell the judge about the law and the facts that support your side of the case. A brief is not evidence and the facts that you write about in your brief need to be supported by evidence. You can file sworn affidavits, declarations, and other paperwork to support your case. An affidavit or declaration is a sworn statement of fact that is based on personal knowledge and is admissible as evidence. If you are a plaintiff or petitioner, you cannot win a summary judgment motion just by saying what is in your complaint. Instead, you need to give evidence such as affidavits or declarations.
    [Show full text]
  • DISCOVERY LIMITED (Incorporated in the Republic Of
    DISCOVERY LIMITED (Incorporated in the Republic of South Africa) (Registration number 1999/007789/06) JSE share code: DSY ISIN: ZAE000022331 (“Discovery” or “the Company”) Voluntary announcement regarding Discovery’s proposed increased participation in DiscoveryCard to 74.99% (“the Transaction”) 1. Introduction Discovery shareholders are referred to the announcements released on the Stock Exchange News Service (“SENS”) on 24 February 2015, relating to the unaudited interim results and cash dividend declaration for the six months ended 31 December 2014 and the intention to undertake an underwritten renounceable rights issue to qualifying Discovery shareholders (“Rights Issue”), and to today’s “Rights Issue Finalisation Announcement”. As communicated in these announcements, a portion of the Rights Issue proceeds will be used to fund growth in adjacent financial services markets in South Africa. Discovery has an excellent track record in expanding its behavioural insurance offering both locally and globally. This shared value model is underpinned by Vitality – Discovery’s world‐leading behavioural‐based wellness programme. Vitality provides Discovery with a unique and powerful data asset of wellness, lifestyle and consumer behaviour which offers insight into member risk profiles and enables better underwriting beyond what can be derived from purely financial behaviour. 2. Background to DiscoveryCard The DiscoveryCard was established in 2004 by Discovery and First National Bank (A division of FirstRand Bank Limited) (“FNB”). The establishment of DiscoveryCard was predicated on Discovery’s ability to offer a differentiated, relevant value proposition based on Vitality and Discovery’s behaviour‐linked model, combined with FNB’s credit card and operational expertise. The business model was constructed with Discovery receiving the revenue required to fund the integrated behavioural incentives and Discovery sharing in 20% of the underlying DiscoveryCard profit.
    [Show full text]
  • Civil Dispositive Motions: a Basic Breakdown
    Civil Dispositive Motions: A Basic Breakdown 1) Simplified Timeline: Motion for 12(b)(6) Motions JNOV** Summary Judgment Motions* Motion for New Trial Motion Motion for D.V. for D.V. (Rul 10 days Discovery and Mediation Plaintiff‟s Defendant‟s Evidence Evidence Process Complaint Trial Jury‟s Entry of Judgment Filed Begins Verdict * Defendant may move at any time. Plaintiff must wait until 30 days after commencement of action. **Movant must have moved for d.v. after close of evidence. 2) Pre-Trial Motions: Rule 12(b)(6) and Summary Judgment A. Rule 12(b)(6) Motions to Dismiss 1. Challenge the sufficiency of the complaint on its face. Movant asks the court to dismiss the complaint for “failure to state a claim upon which relief may be granted.” 2. Standard: The court may grant the motion if the allegations in the complaint are insufficient or defective as a matter of law in properly stating a claim for relief. For example: a) The complaint is for fraud, which requires specific pleading, but a required element of fraud is not alleged. 1 b) The complaint alleges breach of contract, but incorporates by reference (and attaches) a contract that is unenforceable as a matter of law. c) The complaint alleges a claim against a public official in a context in which that official has immunity as a matter of law. 3. The court only looks at the complaint (and documents incorporated by reference). a) If the court looks outside the complaint, the motion is effectively converted to a summary judgment and should be treated under the provisions of Rule 56.
    [Show full text]
  • Case 2:12-Cv-00668-KRG Document 131 Filed 03/18/15 Page 1 of 27
    Case 2:12-cv-00668-KRG Document 131 Filed 03/18/15 Page 1 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA HOWARD KEPHART and DIANE ) KEPHART, ) Civil Action No. 2:12-668 ) Plaintiffs, ) Judge Kim R. Gibson ) v. ) ) ABB, INC., ) ) Defendant; Third-Party ) Plaintiff, ) ) v. ) ) THE BABCOCK & WILCOX ) COMPANY, et al., ) ) Third-Party Defendants ) MEMORANDUM AND ORDER OF COURT I. Synopsis Before the Court in this matter are three motions: (1) a motion to dismiss (ECF No. 94) filed by Third-Party Defendants Babcock & Wilcox Company, Babcock & Wilcox Investment Company, and Babcock & Wilcox Power Generation Group (“B & W” or “B & W Defendants”); (2) a motion for partial summary judgment (ECF No. 108) filed by Defendant/ Third-Party Plaintiff ABB, Inc. (“ABB”); and (3) a motion for consolidation of oral argument (ECF No. 111) filed by Defendant/ Third-Party Plaintiff ABB, Inc. The primary issue argued by the parties is whether Pennsylvania’s statute of repose, 42 Pa. Cons. Stat. § 5536, provides protection from liability in this action to Third-Party Defendants B & W and to Defendant ABB. Based on the record before the Court and after Case 2:12-cv-00668-KRG Document 131 Filed 03/18/15 Page 2 of 27 a careful review of Pennsylvania’s statute of repose and the relevant case law, the Court finds that the statute of repose bars ABB’s contribution claims against the B & W Defendants, but does not bar Plaintiffs’ products liability and negligence claims against ABB. Accordingly, and for the reasons explained below, the Court will GRANT B & W’s motion to dismiss and will DENY ABB’s motion for partial summary judgment.
    [Show full text]
  • Eddie C. Pratcher, Jr. V. Methodist Healthcare Memphis Hospitals, 407
    IN THE SUPREME COURT OF TENNESSEE AT JACKSON November 8, 2012 Session Heard at Memphis EDDIE C. PRATCHER, JR. v. METHODIST HEALTHCARE MEMPHIS HOSPITALS ET AL. Appeal by Permission from the Circuit Court for Shelby County No. CT-0070011-00 Donna M. Fields, Judge No. W2011-01576-SC-S09-CV - Filed June 28, 2013 The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr.
    [Show full text]
  • Initial Stages of Federal Litigation: Overview
    Initial Stages of Federal Litigation: Overview MARCELLUS MCRAE AND ROXANNA IRAN, GIBSON DUNN & CRUTCHER LLP WITH HOLLY B. BIONDO AND ELIZABETH RICHARDSON-ROYER, WITH PRACTICAL LAW LITIGATION A Practice Note explaining the initial steps of a For more information on commencing a lawsuit in federal court, including initial considerations and drafting the case initiating civil lawsuit in US district courts and the major documents, see Practice Notes, Commencing a Federal Lawsuit: procedural and practical considerations counsel Initial Considerations (http://us.practicallaw.com/3-504-0061) and Commencing a Federal Lawsuit: Drafting the Complaint (http:// face during a lawsuit's early stages. Specifically, us.practicallaw.com/5-506-8600); see also Standard Document, this Note explains how to begin a lawsuit, Complaint (Federal) (http://us.practicallaw.com/9-507-9951). respond to a complaint, prepare to defend a The plaintiff must include with the complaint: lawsuit and comply with discovery obligations The $400 filing fee. early in the litigation. Two copies of a corporate disclosure statement, if required (FRCP 7.1). A civil cover sheet, if required by the court's local rules. This Note explains the initial steps of a civil lawsuit in US district For more information on filing procedures in federal court, see courts (the trial courts of the federal court system) and the major Practice Note, Commencing a Federal Lawsuit: Filing and Serving the procedural and practical considerations counsel face during a Complaint (http://us.practicallaw.com/9-506-3484). lawsuit's early stages. It covers the steps from filing a complaint through the initial disclosures litigants must make in connection with SERVICE OF PROCESS discovery.
    [Show full text]
  • Introduction to Law and Legal Reasoning Law Is
    CHAPTER 1: INTRODUCTION TO LAW AND LEGAL REASONING LAW IS "MAN MADE" IT CHANGES OVER TIME TO ACCOMMODATE SOCIETY'S NEEDS LAW IS MADE BY LEGISLATURE LAW IS INTERPRETED BY COURTS TO DETERMINE 1)WHETHER IT IS "CONSTITUTIONAL" 2)WHO IS RIGHT OR WRONG THERE IS A PROCESS WHICH MUST BE FOLLOWED (CALLED "PROCEDURAL LAW") I. Thomas Jefferson: "The study of the law qualifies a man to be useful to himself, to his neighbors, and to the public." II. Ask Several Students to give their definition of "Law." A. Even after years and thousands of dollars, "LAW" still is not easy to define B. What does law Consist of ? Law consists of enforceable rule governing relationships among individuals and between individuals and their society. 1. Students Need to Understand. a. The law is a set of general ideas b. When these general ideas are applied, a judge cannot fit a case to suit a rule; he must fit (or find) a rule to suit the unique case at hand. c. The judge must also supply legitimate reasons for his decisions. C. So, How was the Law Created. The law considered in this text are "man made" law. This law can (and will) change over time in response to the changes and needs of society. D. Example. Grandma, who is 87 years old, walks into a pawn shop. She wants to sell her ring that has been in the family for 200 years. Grandma asks the dealer, "how much will you give me for this ring." The dealer, in good faith, tells Grandma he doesn't know what kind of metal is in the ring, but he will give her $150.
    [Show full text]
  • Milliman Client Report the Part VII Transfer of Non-Profit
    Milliman Client Report k The Part VII transfer of non-profit annuity business from The Prudential Assurance Company Limited to Rothesay Life Plc The report of the Independent Expert Prepared by: Nick Dumbreck FIA, CERA January 21, 2019 Milliman Client Report Table of Contents TABLE OF CONTENTS ...................................................................................................................................... 2 1. INTRODUCTION........................................................................................................................................ 5 The Independent Expert .................................................................................................................................. 5 The purpose and scope of my report ............................................................................................................... 5 Qualifications and Disclosures ........................................................................................................................ 6 The parties for whom the report has been prepared ....................................................................................... 6 Limitations ........................................................................................................................................................ 7 Technical Actuarial Standards (“TAS”) ............................................................................................................ 7 The Actuarial Profession Standards (“APS”) ..................................................................................................
    [Show full text]