Discovery:

Tips, Tricks and Best Practices

Vicki Voisin, ACP

And

Christina L. Koch, ACP

2010 Vicki Voisin, Inc. and Christina L. Koch, ACP

All rights reserved. No part of this handout may be reproduced or transmitted in any form or by any electronic or mechanical means, including
information storage and retrieval systems, without permission in writing from the copyright holder, except by a reviewer who may quote brief
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The Contents

The Presenter: Vicki Voisin, ACP .................................................................................................. 3

The Presenter: Christina L. Koch, ACP ......................................................................................... 4
1. What Is Discovery? .................................................................................................................... 6
2. Is it Discoverable? Is it Privileged? ......................................................................................... 9
3. Scheduling Orders .................................................................................................................... 12
4. Discovery Tools and the Discovery Plan ................................................................................. 13
5. Federal Court Scheduling Orders............................................................................................. 15
6. Written Discovery .................................................................................................................... 17
7. Depositions .............................................................................................................................. 22
8. Experts ..................................................................................................................................... 26
9. Electronic Discovery ................................................................................................................ 27
10. Abstracting and Indexing Documents .................................................................................... 29
The Conclusion ............................................................................................................................. 30
The Discovery Toolbox ................................................................................................................ 31

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The Presenter: Vicki Voisin, ACP

Vicki Voisin, ACP, The Paralegal Mentor, is a nationally recognized author and speaker who delivers simple
strategies for paralegals and other professionals to create success and satisfaction
by setting goals and determining the direction they will take their careers. Vicki
spotlights resources, ethics issues, organizational tips, and other areas of
continuing education to help paralegals and others reach their full potential.
She publishes Paralegal Strategies, a weekly ezine for paralegals and other
professionals who want to create lasting success in their personal and professional
lives. Additional information is available at www.paralegalmentor.com. She also
co-hosts a monthly podcast produced by Legal Talk Network featuring guest
experts who discuss issues of interest to the legal profession. For information or to
register, go to www.paralegalmentor.com/mastermind-calls.html.
After spending more than twenty years in the paralegal field, Vicki launched her
Paralegal Mentor Program so she could share her knowledge and experience with
other paralegals.
Vicki speaks on issues of interest to the legal profession and is the creator and presenter of EthicsBasics, a unique
and enormously popular program designed to raise awareness of ethical concerns by legal professionals. She has
worked as a paralegal for more than 20 years and is currently employed by Running Wise & Ford, PLC in their
Charlevoix, Michigan office.
Utilizing the EthicsBasics format, Vicki has made numerous presentations throughout the United States, addressing
paralegals and other members of the legal staff, in both law firms and corporations. She is also a frequent speaker at
meetings of professional associations; these presentations have been approved for Attorney MCLE.
Vicki has authored articles of interest to attorneys and paralegals in publications on the state and national level,
including the Michigan Bar Journal, Michigan Lawyers Weekly, The Michigan Paralegal, Legal Assistant Today,
LAAMs Newsbrief, and The Career Chronicle and Facts & Findings published by NALA. Many of those articles
have been re-printed nationwide.
Vicki is an active member of the Legal Assistants Section of the State Bar of Michigan, having served as Chair in
2005-06. In 2000, she received the Mentors Award from the Section and she was named Legal Assistant of the
Year by LAAM, an award that was named in her honor. In 2003, NALA recognized her leadership in the
development of the paralegal profession with the presentation of its Presidents Award.
She is a past president of the National Association of Legal Assistants (NALA) and until recently served on
NALAs Advanced Certification Board. Vicki presents Basic Ethics I and II, Advanced Ethics, Ethics &
Technology, and Time Organization Techniques on NALA Campus LIVE!
Questions may be directed to Vicki@paralegalmentor.com. Visit her blog at www.paralegalmentor.blogspot.com
where she addresses matters of interest to legal professionals. Subscribe to her weekly ezine titled Paralegal
Strategies at www.paralegalmentor.com.
***Follow Vicki***
Twitter:
http://www.Twitter.com/VickiVoisin
Facebook:
http://www.facebook.com/VickiVoisin
LinkedIn:
http://www.linkedin.comm/in/VickiVoisin

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The Presenter: Christina L. Koch, ACP

Christina L. Koch, ACP is a NALA Advanced Certified
Paralegal in Trial Practice with more than twenty years of
experience in the legal field. She received her Paralegal degree
in 1991 and also holds a Bachelor of Science Degree in
Management. She is a National Deans List Scholar.
In 2002, Christina joined the Omaha NE firm of Inserra &
Kelley and is currently a Litigation Paralegal/Trial Practice
Specialist. Her work with Inserra & Kelley includes handling
all aspects of litigation for the firm. She is adept in performing
all aspects of litigation, including legal research, writing,
discovery, investigative and analytical skills and preparation. Her experience includes the areas
of personal injury, workers compensation, products liability, FELA and insurance defense.
She is a member of NALA, NePA, and a paralegal affiliate of the American Association of
Justice. She currently serves as President-Elect of NePA.
Christina completed the NALA LEAP program in 2009 and was named to the Paralegal
Superstar Calendar of the nationwide Paralegal Gateway for March of 2008.
Christina has served on the Nebraska Paralegal Association Board of Directors since 2007 and is
currently a member of the AAJ Paralegal Task Force Advisory Committee.
She is a nationally recognized author and speaker on various litigation topics and was a member
of the faculty of the Trial Specialist Institute in Las Vegas, NV.
Christina is a freelance legal author, speaker and blogger and the founder of the Nebraska
Paralegals list serve.

***Follow Christina***
Twitter:
http://www.Twitter.com/ChristinaKoch
Facebook:
http://www.facebook.com/christina.koch#!/profile.php?id=518452926
LinkedIn:
http://www.linkedin.com/in/christinakoch

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Notice:
Warning of Copyright Protection: Any sample documents presented to you in this teleclass and are ALL copyright protected. Under no
circumstances can the copy in these documents be used or reproduced, in whole or in part, without the express written permission of Vicki
Voisin. The absence of a copyright notice on any given page or material should NOT be construed as an absence of copyright. These materials
and documents are provided for sample purposes only and only for your personal use. They are not to be distributed or used in any other learning
venues.
Legal Notice: This teleclass contains information gathered from many sources, as well as from the experiences of the author. It is produced for
general reference and not as a substitute for independent verification by users when circumstances warrant. It is presented with the understanding
that the author is not engaged in rendering any legal, accounting or psychological advice. In instances where the opinions or advice of legal,
financial, psychological or other professional advice are appropriate, such professional counsel should be sought. The author disclaims any
liability whatsoever for individuals use of any advice or information presented. Although the author has used care and diligence in the
preparation of this presentation, she assumes no responsibility for errors or omissions.

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1. What Is Discovery?
Discovery: the process whereby parties to litigation exchange information; used to elicit the basic facts of a case and
to clarify issues for trial; useful for determining the strengths and weaknesses of your case.
You must comply with discovery requests from opposing counsel unless you can demonstrate that the request
pertains to protected information.
The role of a paralegal in the discovery process can vary but a paralegal can be involved in most aspects so long as
the attorney supervises the paralegals work and takes responsibility for the final work product.

Ethics rules and opinions apply to discovery. The ABA Model Rules of Professional Conduct (available at
www.abanet.org) are referred to in this presentation.
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Be sure you know your states ethics rules and opinions, as well as those of your professional association.
Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.
Rule 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.
This would include performing the discovery necessary for representation.
Rule 1.6 Confidentiality Of Information A lawyer shall not reveal information relating to the
representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to
carry out the representation or the disclosure is permitted by paragraph other provisions in this rule. Were going to
talk about what can be disclosed during discoveryand what should not.
Rule 3.2 Expediting Litigation A lawyer shall make reasonable efforts to expedite litigation consistent
with the interests of the client.
Rule 3.4 Fairness To Opposing Party And Counsel A lawyer shall not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document or other material having potential
evidentiary value. A lawyer shall not counsel or assist another person to do any such act and in pretrial procedure,
make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;
Rule 4.1 Truthfulness In Statements To Others In the course of representing a client a lawyer shall not
knowingly make a false statement of material fact or law to a third person; or fail to disclose a material fact to a third
person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by Rule 1.6, which, if you remember, refers to confidentiality of information.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants With respect to a nonlawyer employed or
retained by or associated with a lawyer, the lawyer shall make reasonable efforts to ensure that the person's conduct
is compatible with the professional obligations of the lawyer; this would include supervising the work of the
nonlawyers and reviewing the work product before it leaves the office.
Rule 8.4 Misconduct It is professional misconduct for a lawyer to engage in conduct involving dishonesty,
fraud, deceit or misrepresentation;

Note: The above is a summary of each rule as it applies to discovery. Please go to www.abanet.org to review each
rule in its entirety.

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Applicable court rules depend on jurisdiction and venue of the case.

Jurisdiction what court has the authority to rule on your specific case?
Venue = the physical location where the case is filed.
Once jurisdiction and venue are determined, review the applicable court rules.
Federal Court: Federal Rules of Civil Procedure
http://judiciary.house.gove/hearings/printers/111th/civil2009.pdf

U.S. District Court: check the web site of the Court in which you are practicing
State, circuit court or administrative law jurisdictions: usually publish discovery rules on the Internet.
Check search engines such as Google or Lycos.
You should also check the applicable Rules of Evidence. For instance, the Federal Rules of Evidence:
http://www.law.cornell.edu/rules/fre

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2. Is it Discoverable? Is it Privileged?
The following are discoverable:
The identity and location of fact witnesses or any fact relevant to the subject matter of the lawsuit;
The identity and opinions of an expert witness who may be used at trial.
The identity and location of individuals likely to have discoverable information to disputed facts alleged in
the pleadings;
The facts that lead to a contention or belief that other persons or things caused or contributed to the incident
in question;
Any insurance agreements relevant to a pending action (included in the Initial Disclosures);
Income tax returns (discoverable but subject to protection);
Photographs;
Contention interrogatories (i.e., With regard to your contention that you were bit by Defendants dog,
please state every fact that supports your allegation. . .);
Similar incidents and complaints in products liability cases;
Trade secrets
Net worth is discoverable as to damages claimed;
Post-accident investigations, which are not privileged, if there is a substantial need and the investigation is
not available through other avenues;
Portions of the Experts File (again, we will discuss the new rule later);
Party Opinions;
Statements;
Medical Records;
Documents used to refresh recollection at a deposition;
Surveillance Materials; and
Attorney billing records (if relevant to a controlling issue).

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The following are not discoverable:

Witness statements obtained in anticipation of pending litigation without substantial need;
Proper Objection: trial preparation material/work-product;
Investigations in anticipation of litigation if there is a showing of substantial need and inability to gain
knowledge through other avenues; Proper Objection: work-product;
Identity and work product of experts informally consulted; Proper Objection: work-product; and
Attorneys ordinary work product and opinion work product

Rule 26(b) (5) requires a party claiming a privilege to

describe the nature of the documents, communications, or things not produced or disclosed in a manner
that, without revealing information itself privileged or protected, will enable other parties to assess the
applicability of the privilege or protection.
The burden of proof is on the party that claims the privilege.
Work Product Doctrine. Protects the attorneys analysis and case strategy.
To claim a work product privilege, a three-prong analysis must be used:
Was the document prepared during, or in anticipation of litigation;
If so, is the material opinion or non-opinion work product;
If it is non-opinion work product, has the party seeing production demonstrated a substantial need
for the document or will the party endure substantial hardship if it is not produced?
Does not protect:

the underlying facts in work-product documents,

the identity of the parties from whom the facts were obtained, or the fact that the
work-product document exists.

Opinion work product can only be discovered in extraordinary circumstances.

Work-product documents may be discoverable if the party seeking the discovery demonstrates there is a substantial
need for the document and there is no other reasonable way to obtain it.
Documents reflecting mental impressions, conclusions, opinions or legal theories are protected by the work product
doctrine and cannot be overcome by a showing of substantial need and inability to obtain the document without
undue hardship.

The attorney-client privilege is a rule of evidence. To claim an attorney/client privilege, the following criteria
must be met:
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The party for whom the privilege is invoked either is a client or seeks to become a client;
The attorney or a representative is engaged in the relationship for the purpose of rendering legal services to
the client;
The information is confidential and not intended to be disclosed to third parties for the purpose of obtaining
either an opinion on legal services or assistance in a legal proceeding.
The privilege has not been waived by the client.
The privilege protects only the confidential information, not the disclosure of underlying facts by those who
communicated with the attorney. It is the process rather than the factual content that is protected.
The privilege can be waived if the information is communicated directly to a third party, communicated in the
presence of a third party, or otherwise disclosed voluntarily.

Self-Analysis Privilege. A partys right to protect an analysis critical of the partys conduct.
The information must result from an internal review of the partys procedures or products conducted for the
purpose of evaluation or improvement;
Persons contributing to the evaluation intended their input to be kept confidential and not subject to public
dissemination; and
The information contained in the evaluation is the type that would be curtailed if subject to discovery.

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3. Scheduling Orders
Scheduling Orders: Set the major deadlines in the case and set the extent of discovery permitted, deadlines for
expert witness disclosures, motions, and additional parties or pleadings.
Federal Court:
Discovery normally closes no later than thirty-five days prior to the scheduled trial date.
Parties work together on a Joint Proposed Scheduling Conference Order; includes

a statement of the case,

jurisdiction,

timing of disclosures,

any limits on discovery,

and any other items the parties feel are appropriate to be addressed by the Court.

State court scheduling orders may vary from state to state; parties can stipulate to extend the deadlines; if
no stipulation, file an Amended Scheduling Order

Pay close attention to the expert deadlines and what is required under those deadlines.
The proposed Scheduling Order is very important in planning your case, not just in terms of strategy, but
also in terms of knowing when you have to have certain information and for prioritizing tasks.

Calendaring the dates in the Scheduling Order requires a high degree of competency and accuracy.

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4. Discovery Tools and the Discovery Plan

Four basic discovery tools customarily used in litigation:

Interrogatories
Requests for Production
Requests for Admission
Depositions.
The discovery plan determines which process or processes will be used. Begin the discovery plan as soon as
the complaint is filed. Be sure to review:

Complaint

Answer and the Reply, if your jurisdiction allows a Reply

Potential jury instructions

Questions for preparation of discovery plan:

What are the issues in the case?

What do you need to prove?

What do the facts you have already uncovered determine? Regarding the facts you still need to uncover,
what is the best way to find those facts?

What is unusual about this case?

Do you need a protection letter to avoid the other side from disposing of evidence?

Do you need specific subpoenas?

Did you explore the possibility of social networking discovery?

Do you need a site inspection or specialty medical examination?

Have you preserved physical evidence?

Who will be called as a witness and why?

Do you need specialized discovery (discovery that is beyond your standard form requests)

Are electronic documents an issue?

What about cell phones, pagers, or the little black box in planes or trucks?

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Do you need to create a privilege log?

Privilege log: shows all evidence not produced under a claim of privilege. The privilege log is produced to
the other attorney to show what evidence has been withheld.

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5. Federal Court Scheduling Orders

Federal Court Scheduling Orders differ from State Court Scheduling Orders.

Federal Court requires the parties meet and confer about discovery and case progression as soon as
feasible, but not later than 21 days prior to the Scheduling Conference or the date a Scheduling Order is due
under Rule 16(b).

Parties joined or served after the Rule 26(f) Conference must file Initial Disclosures within 30 days of
being served or joined, unless given a different timeline by the Court.

It is a good practice to schedule your Rule 26(f) Conference as soon as possible, closely followed by your
Initial Disclosures, which are due within 14 days of the Rule 26(f) Conference.

No other discovery is allowed until after the parties confer, develop and submit a proposed discovery plan
to the court in advance of the scheduling conference

Parties review the Rule 26(f) form to choose deadlines; issues such as e-discovery, discovery deadlines
and limits in discovery, and preservation of evidence should be discussed.

Report of Rule 26(f) Planning Conference must be filed with the Court within 14 days of the conference.

Initial Disclosures must include certain information as required under Rule 26(A) (1) (a):

name, address and phone number of any person likely to have discoverable information and the subject of
that information used to support its case (unless used solely for impeachment);

copies of all documents (including e-discovery) disclosing party has in its possession to support its case
(unless used solely for impeachment);

computation of damages claimed by disclosing party, including supporting documentation on the nature
and extent of injuries; and

copy of any insurance agreements which a party may be able to use to satisfy any judgment or which could
be used to indemnify or reimburse for payments made to satisfy any judgment.

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The Court issues a Scheduling Order after receiving the parties Report of Parties Rule 26(f) Scheduling
Conference or after consulting with the parties attorneys and any unrepresented parties at a scheduling conference
(usually held by phone).

Generally completed within 120 days after the defendant has been served or within 90 days after a
defendant has filed his appearance or Answer.

May mimic the deadlines set forth in the Report of Rule 26(f) Scheduling Conference, or it may alter
deadlines.

Very important that all deadlines be met

Once Initial Disclosures are filed, additional discovery may be commenced, customarily beginning with written
discovery.

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6. Written Discovery
Main types of written discovery:
Interrogatories
Requests for Production
Requests for Admission
Subpoenas Duces Tecum
Interrogatories: written questions to the opposing party, designed to elicit the basic facts of the case.

Federal Court: interrogatories limited to 25 questions; refer to Rule 33

Additional Interrogatories may be authorized by leave of Court under Rule 26(b) (2); requires filing of a
Motion to Expand Discovery.

Interrogatories must be answered in writing under oath within thirty (30) days. May request additional time
from the serving party; verify extensions in writing, either with a confirmation letter or an e-mail.

Interrogatories may be objected to; all objections are waived if not asserted within thirty (30) days.
Generally, stipulations for extensions will not extend the time in which to object to discovery.

Check your rules to verify who signs the answers and the objections. An example of a standard set of
Interrogatories is included in your handout. It is best to start with a basic form and then customize it to fit
your case.

Tips for formulating case-specific discovery requests:

compare initial pleadings to determine what facts are stipulated and what facts will be disputed;

review probably jury instructions

Caution: should be facts be elicited through deposition instead of interrogatories?

Common objections to Interrogatories:

vague and overly burdensome;

probe into work product doctrine or information covered by the attorney/client privilege.

Note: if documents are withheld due to privilege, include the document and the reason for withholding it on
the Privilege Log.

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Requests for Production of Documents: written requests that the opposing party produce copies of documents.

Covered by Rule 34

No limit

Should be specific to avoid the vague and overly burdensome objections.

Forget the fishing expedition

Requests for Admissions: generally used to stipulate to the genuineness of a document or to set forth facts not in
dispute.

Governed by Rule 36.

Failure to respond or object to a request within 30 days after its served results in the matter being deemed
admitted

Each request should be separate; responses generally short and simple: admit, deny, or state in detail why
you cant truthfully admit or deny.

Objection to a Request for Admission must state reasonable grounds for objecting

An admission under this rule is only good for the case in which it is issued.

Motion to Compel Discovery (Rule 37(a) used

o

when discovery has been served and opposing party fails to respond within the 30-day response
period

for failure to comply with a court order

failure to supplement responses, agree to an inspection, or participate in discovery plan.

A hearing is generally required.

Expenses may also be awarded

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Inspections. Covered by Rule 34 and refers to either inspections of land or products, or inspection of a persons
mental or physical conditions. Be sure to consider:

Will the experts be present?

Will the inspection include measurements, surveying, testing, sampling or photography?

If it is a products case and you need an inspection, will the inspection destroy evidence?

Nonparties may be compelled to submit to an inspection through the use of a subpoena as provided in
Federal Rule of Civil Procedure 45 [Rule 34(c)]

Must state a reasonable time, place and manner for inspection

The responding party must either respond or object to a Request for Inspection, in writing, within thirty
days of service of the request.

Rule 35 allows for the physical and mental examination of a party.

o

Is the physical or mental state of a party is at issue in the lawsuit?

Is there good cause for the request?

If medical causation or damages are issues, that will be enough to support an independent medical
examination (IME) or defense medical examination (DME).

The person subjected to the mental or physical examination is entitled to a copy of the report,
upon request.

Subpoenas. Often issued to non-parties; covered by Rule 45.

Subpoena Duces Tecum is generally used to gather documentation and can be used in conjunction with a
deposition or by itself;
o

Should be directed to a specific person, designating what is requested of that person, including the
production of any documents.

Note: some jurisdictions issue subpoenas through Court Reporters and others are issued by the Court. Be
sure to check your local rules so you know
o

who issues the subpoenas,

What the witness fee is, if any,

Specific time periods that must be complied with.

Is a Notice of Intent to Serve Subpoena necessary prior to Subpoena?

Is there a waiting period before service of the Subpoena?

Subpoena for appearance to appear to give testimony at deposition, hearing or trial.

Does it need to be served in person or can you serve it by certified mail?

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Is there a witness fee?

Is there a limit to the subpoena power of the court? Example: mileage restriction

Is mileage included in your local rules?

If documents are requested, how does your jurisdiction handle copying expenses?

Is the subpoena is for documents only?

Indicate that production of the documents will alleviate the necessity of an appearance.

Objections to subpoenas must be served

before the earlier of the time specified for compliance or 14 days after the subpoena is served

serving party may move the issuing court for an order compelling production or inspection.

Motion to Quash or Modify Subpoena.

Filed if a party objects to a Subpoena

Proper if the subpoena fails to allow a reasonable time to comply, or

requires a person who is neither a party nor a party's officer to travel more than 100 miles from
where that person resides, is employed, or regularly transacts business in person (with the
exception that a person can be commanded to attend a trial by traveling from any such place
within the state where the trial is held);

requires disclosure of privileged or other protected matter, if no exception or waiver applies;

or subjects a person to undue burden.

Additional reasons to file a Motion to Quash:

o

attempts to obtain a trade secret or other confidential information;

attempts to obtain an unretained experts opinion; or

attempts to require a witness to incur substantial expense to travel more than 100 miles to attend
trial.

Responding to a subpoena to produce:

must be produced as they are kept in the ordinary course of business or

must be organized and labeled to correspond to the categories in the demand.

persons withholding subpoenaed information under a claim that it is privileged or subject to protection as
trial-preparation material must make the claim of privilege and describe the nature of the documents.

if information produced in response to a subpoena is subject to a claim of privilege or protection as trialpreparation material, the person making the claim may notify the party that received the information of the
claim and the basis for it.

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After notification, a party must promptly return, sequester, or destroy the specified information
and any copies and cannot use or disclose the information until the claim is resolved.

Failure to respond to a subpoena can subject a person to a Contempt of Court charge.

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7. Depositions
Depositions: to elicit basic facts for discovery purposes and to preserve testimony for trial. Most common are:

fact witness depositions,

expert depositions,

corporate depositions, and

depositions on written questions.

Rule 27 allows a deposition to be taken to perpetuate testimony. This can only be done by permission of the
court; used when a witness may be able to give material testimony but may be unable to attend a trial or hearing.
The petition must show five things.
1.

Petitioner must expect to be a party in a case but not presently be able to bring the suit.

2.

Must show the subject matter of the expected action and what interest the petitioner has in the action.

3.

The facts the petitioner believes will be established in the deposition and the reason it is important to
perpetuate it.

4.

The names or a description of the persons expected to be adverse in the filed case, and

5.

Name, address and expected substance of the testimony of the deponent.

Oral Depositions: Rule 30 covers oral depositions, with or without leave of court. There are restrictions in federal
court:

No more than ten depositions are allowed by each side and each deposition is limited to one day of seven
hours.

Check local rules to determine if any additional restrictions are in place. If you are in state or circuit court,
check jurisdictional rules regarding the taking of depositions.

Give appropriate notice of the deposition; some jurisdictions require three days notice, while others require
fourteen days notice.

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The Paralegals role in deposition:

Will probably schedule the deposition; requires a number of phone calls, coordination of multiple schedules
and planning.
o

Allow time for attorney to prepare for the deposition; amount may differ for the client as opposed
to the witness;

Set a reminder to pull the file and organize it for the attorney a few days prior to the deposition.

Send a confirmation letter to the client, and/or a Notice of Deposition.

o

Should state the name of the deponent, the time and place of the deposition, method of
recording the deposition (i.e., transcription or videotaping), and any documents to be
brought to the deposition.

Send a copy of the Notice of Deposition to all adverse counsel, the witness, and the court
reporter.

Note: expert depositions are similar but may require additional preparation, depending on
how much of the experts file is discoverable under the local rules.

CAUTION: Significant changes to the federal rule regarding experts take effect in December 2010:

3 significant changes to Rule 26;

1.

Draft expert reports and communications between attorneys and their experts will be deemed work
product.

2.

Still exempts a party intending to offer testimony from a non-testifying expert from producing a
report but that party must submit a disclosure with the subject matter on which the witness is
expected to present evidence and a summary of the facts and opinions to which the witness is
expected to testify.

3.

Will require the expert report to identify facts that the expert considered in forming the opinions.
The expert's qualifications must include a list of all publications going back ten years, the
compensation being paid and a list of all cases where the expert testified at trial or deposition
going back four years.

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Discovery: Tips, Tricks and Best Practices

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Corporate depositions: more complicated; covered by Rule 30(b) (6).

Notice of Deposition should name the corporation or other entity you wish to gain information of, but must
state with reasonable particularity the matters for which the deponent will be requested to provide
information.

Notice of Deposition must advise the corporation of their responsibility to make a designation for the
deposition.

Docket for sufficient time to check back with the corporation or its attorney to find out who they wish to
designate. The persons designated must testify about information known or reasonably available to the
organization.

Deposition by Written Questions. Covered by Rule 31; allows you to serve written questions on a non-party in lieu
of an actual deposition. A Notice of Deposition Upon Written Questions

must be served on every other party with notice of the questions to be asked of the non-party, as well as the
name and address of the non-party to be deposed;

within 30 days of the notice and written questions are served, other parties may serve cross-questions on all
other parties;

within 10 days after being served with the cross-questions, a party may serve redirect questions upon all
other parties;

within 10 days of those questions, a party may serve re-cross questions on other parties.

time periods can be increased by Court order;

after all questions have been submitted, the party requesting the Deposition by Written Questions should
serve the Deposition by Written Questions on the party to be questioned. A Court Reporter can be used to
present the questions to the deponent on the date of the deposition and attest that the answers are properly
sworn.
o

the parties do not need to be present at this type of Deposition.

useful to establish authenticity of medical, employment or business records; be sure to depose the
custodian of records.

Limitations on where depositions can be taken, and how far a witness can be compelled to travel.

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Discovery: Tips, Tricks and Best Practices

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Spoliation of Evidence.

Parties have a duty to preserve evidence and if they fail to do so, sanctions can be assessed.

Send a protection letter as soon as you get the case; especially important in products liability cases.

Try to preserve the evidence yourself by gaining access to the product through an inspection with your
expert and opposing counsels expert.

Different courts handle spoliation issues in a variety of ways. The most common is to treat it as an abuse of
the discovery process and issue sanctions pursuant to Rule 37

Freedom of Information Act Request (FOIA). The Freedom of Information Act (FOIA) is a federal act that
allows the public access to all records of federal agencies under the control of the executive branch, unless the
records fall under an exemption to the Act.

There are 9 exemptions; if the requested information falls within one of those exemptions, the agency will
weigh the risk of foreseeable harm against the disclosure and determine whether or not to claim the
exemption.

Additional information: http://www.rcfp.org/fogg/.

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Discovery: Tips, Tricks and Best Practices

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8. Experts
Experts how to deal with them

Be sure you have all the experts you need and

Youve docketed your expert deadlines.

Send the expert a retention letter; include

o

what you are hiring the expert to do,

what the experts fees are and

a detailed listing of the materials you are asking the expert to review.

Order the Curriculum Vitae or resume of your expert to be the expert will meet any Daubert challenges.

Two types of experts

o

consulting experts are retained to give an opinion in anticipation of litigation, but are not expected
to testify.

testifying experts must be experts must be disclosed.

In federal court, disclose not only the identity of the expert and the report, but also the
experts qualifications, experience testifying, list of publications, fees and opinions, any
materials the expert has reviewed or relied upon in forming his or her opinions.

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Discovery: Tips, Tricks and Best Practices

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9. Electronic Discovery
Electronic Discovery refers to any process in which electronic data is sought, located, secured, and searched with
the intent of using it as evidence in a civil or criminal legal case.

Electronically stored information commonly referred to as ESI.

Early case assessment is more important than ever

o

Data collection

Key custodians

Contact Information

Procedural Guidelines

Chain of Custody expectations

Data stored by third parties.

Data of all types can serve as evidenceincluding email (and its attachments), text, images, calendar files,
databases, spreadsheets, audio files, animation, web sites and computer programs.

Federal Rules that in e-discovery:

o

Rule 26. At Rule 26(b)(2) Specific Limitations on Electronically Stored Information says that a
party doesnt have to provide discovery of ESI from sources that the party identifies as not
reasonably accessible because of undue burden or cost.

Rule 34(b)(2) covers the production of electronically stored information in that a party must
produce documents as they are kept in the usual course of business or organize and label them to
correspond to the categories in the request. See Easley, McCaleb & Assocs., Inc. v Perry, No. E2663 (Ga. Super. Ct. July 13, 1994); Santiago v Mils, 121 F.R.D., 636, 640 (W.D.N.Y. 1988);
Gates Rubber Co., v Bando Chemical Indus., Ltd., 167 F.R.D. 90, 112 (D. Colo. 1996); Northwest
Airlines, Inc. v Teamsters Local 2000 et al, 163 L.R.R.M. (BNA) 2460, (USDC Minn. 1999).

ESI requires that lawyers and paralegals have more technical expertise than in the pastand they have to
develop an adequate understanding of the clients data system. See Qualcomm v Broadcom, 2008 U.S. Dist.
LEXIS 911 (S.D. Cal. Jan. 7 2008

Native File Formats which are identified by the three character extension (i.e. .doc, .docx, .pst); examples
of vendors = fiosinc.com, and lexbe.com.

If claiming the privilege, you are required to disclose that the information exists but is not being turned
over due to some privilege; prepare a privilege log

Sample statement that some attorneys use in their discovery responses:

To the extent [client], pursuant to any request by [opposing party], produces a document which any party
may later claim is privileged or which any party characterizes as privileged, it is understood that such
production does not constitute a waiver of the attorney-client privilege or the attorney work product
doctrine. If any discovery material turned over contains privileged information or attorney work-product,

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Discovery: Tips, Tricks and Best Practices

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demand is hereby made that it shall be immediately returned if the document appears on its face to have
been inadvertently produced.

Email must be produced with attachments; attachments must be in a reasonably usable form, meaning
searchable data cant be produced in an unsearchable format.

Courts have held that documents must be produced with metadata intact.

Spoliation of evidence: consider sending a notice not to destroy, conceal or alter any paper or electronic
files.

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Discovery: Tips, Tricks and Best Practices

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10. Abstracting and Indexing Documents

Begin abstracting and indexing documents as early as possible.

Know the Supreme Court Rule in your jurisdiction regarding the numbering of exhibits and begin this
process with the first deposition.

When dealing with voluminous documents:

o

Separate the materials into stacks

Consolidate similar areas, such as Research and Attorney Notes; make one file and include
both on the label.

Put all the pleadings and court papers together and in chronological order.

All deposition transcripts should be stored in the same place

If you are utilizing your computer system, rearrange subfiles so they are grouped under general
headings matching the physical file.

In extremely large files, you may also need to index materials within the individual subfiles.

Using Technology in Discovery and Document Control

Use what is already available to you: telephone, fax, computers, copiers, file servers, scanners, laptops and
PDAs.

Use of technology in document control is crucial in maintaining deadlines and statutes of limitations.

The Internet is also a good resource; there are numerous websites you can use to find the information you
will use every day as a Paralegal.

Utilize list serves (those your firm subscribes to or those offered by local and national professional
associations

Whether or not you index all depositions and discovery will depend on the case, the status of the litigation,
and the complexity of the case.

Remember: summarizing means the end work product must be summarized; do not reiterate everything in
the document being summarized.

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Discovery: Tips, Tricks and Best Practices

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The Conclusion

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Discovery: Tips, Tricks and Best Practices

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The Discovery Toolbox

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DISCOVERYTOOLBOXINDEX
Tools

DiscoveryDeadlineCheatSheet
DiscoveryMotionsHandout
SampleInitialDiscoveryPlan Checklist

WrittenDiscoveryTools

SampleInitialDisclosures
SampleofInitialWrittenDiscoveryRequests(WC)
StateListingofEDiscoveryGuidelines
SampleEDiscoveryRequests
SampleofDiscoveryResponsesSummation
SampleofDiscoveryComplianceLetterPRIOR toMotionto
Compel

DepositionTools

ChecklistforPreparingaNoticeofDeposition
SampleMotionforAppointmentofInterpreter
SampleCorporateNoticeofDeposition30(b)(6)
SampleFederal30(b)(6)NOD.Corporate KROLLONTRACK
SampleFactWitnessNoticeofDeposition
SampleVideoNoticeofDeposition
SampleofDepositionbyWrittenQuestions
SampleDepositionSummation

FederalSchedulingProcessTools

SampleSchedulingConferencePacket
SampleReportofPartiesRule26(f)PlanningConference
SampleOrderforSchedulingConference

5
8
10

12
21
31
41
50
52

54
56
59
63
66
68
70
76

87
95
101

Subpoenas

SampleofMedicalRecordsSubpoena

EvidenceGatheringTools FOIA

U.S.DepartmentofJusticeFreedomofInformationAct
PrincipleContactsList(creditforthispublicationisincludedon
theform)
TipsfromTheNationalSecurityArchiveregardingFOIA
Requests
SampleFOIARequest
SampleFOIAAppealLetter

ProtectionandSpoliationTools

SpoliationRulesListfromAll50States(creditforthis
publicationisincludedontheform)
SampleofSpoliationProtectionLetter
SampleofSpoliationProtectionLetter WalMart
SampleofSpoliationProtectionLetter TruckingCases
SampleofSpoliationMotionforRelief
SampleofBriefinSupportofSpoliationMotion

Confidentiality/NonDisclosureTools

SampleConfidentialityandNondisclosureAgreement

LogsandOtherDiscoveryTools

SampleExhibitList(tokeeprunninglistforDeposandExhibits)
SampleofExhibitLog
SampleofSummaryofEvidenceLog
SampleofWitness/ExhibitCrossReferenceLog
SampleofProductionLog
SampleofPrivilegeLog

103

110

131
134
136

138
160
164
166
170
173

201

209
212
214
215
216
217

SampleofPhotographLog
SampleofPriororUnrelatedMedicalLog
SampleMedicationsLog

Timelines

SampleMedicalTimeline
SampleofEvent/CaseTimeline

EngagementLetters

SampleofExpertEngagementLetter

NewRuleEffective12/1/2010

2010NewRule26ExpertRule Effective12/1/2010

218
219
220

222
223

224

227

DISCOVERY DEADLINE CHEAT SHEET

DISCOVERYDEADLINECHEATSHEET
Discovery

MeetandConferConference

Rule26(f)Meeting

ReportofRule26(f)PlanningConference

JointReport

InitialDisclosures

Eachpartyfilesseparately

FileaNoticeofFilingwiththeCourt

SchedulingOrder
Rule16(b)

IssuedbyCourtafterRule26(f)Scheduling

Conferencefiledorbydeadlines

MayusesamedeadlinesorCourtmayamend
DeadlinesfromRule26(f)Report

InitialWrittenDiscovery
Rule33Interrogatories
o Limit25unlessyoufileaMotiontoExpand
DiscoveryunderRule26(b)(2)oraStipulation
toExpandDiscoveryunderRule29
o Mustbeansweredin30days
Rule34RequestsforProduction
o NoLimit
o Mustbeansweredin30days
Rule36RequestsforAdmissions
o NoLimit
o Deemedadmittedifnotansweredin30days
Rule45SubpoenaDucesTecum
o Checklocalrulesre:thefollowing
Servicemethods
Witnessfees
Waitingperiods
Timeperiodtorespondorobject
Travelrestrictions
Expenses
Mileage
Copies
Travelexpenses
Wagereimbursementallowed?

FederalDeadline
DateforSchedulingOrder
PLUS21days
MeetandConferConference
PLUS14days
ReportofRule26(f)Planning
PLUS14days

Typically120daysafterthe
defendantisservedOR
90daysafterdefensefiles
anAppearance

ForeignService
28U.S.C.A.1783
Objectwithin14daysafterSubpoena
servedortimeperiodspecifiedfor
compliance

Depositions
Rule30

o Limits10perpartyunderRule30(a)(2)(A)

o Limits7hoursperdepositionunderRule30(d)(2)

Rule30(b)(6)
o CorporateDeposition
Opposingpartydesignatesdeponent
Remembertogivelistofquestionsand
Listofdocumentsanditemstobereviewed
Rule31
o DepositionsbyWrittenQuestions

30daysforwrittencrossquestions;then
10daysforrecrossquestions
Answeredinfrontofanotary/courtreporter

Noticedependson
jurisdictionsome3
daysandothersare
14daysnotice

DISCOVERY MOTIONS HANDOUT

DISCOVERYMOTIONS
Motions

MotiontoCompelDiscovery

Expenses

o AttorneyFees
o Sanctions

MotionforProtectiveOrder

Expenses
AttorneyFees

MotiontoCompelInspection

Objections

o ResponseinWriting
o Within30days

MotionforPhysical/MentalExaminations
Physical/MentalStateatissue
GoodCause
o MedicalCausationIssue
o DamagesIssue
CopyofReporttopersonunder

Examinationauthorized

MotiontoQuash/ModifySubpoena

Travellimitedtow/in100milesof
Deponentsresidence,employmentor
wheredeponentregularlytransactsbusiness
Appropriateifsubpoenaattemptstoobtain
ConfidentialInformationoratradesecret

MotionforReliefDuetoSpoliation

IssueProtectionLettersEARLYINLITIGATION

MotionforAppointmentofInterpreter

UseonlyCertifiedInterpreters

ApplicableFederalRule

Rule37(a)
Rule37(a)(5)

Rule26(c)

Rule34
Rule34(b)

Rule35

Rule35(b)(1)

Rule45(c)(3)

Rule37

FederalRuleofEvidence604
IFDEPONENTDOESNOT
SPEAKENGLISH

SAMPLE INITIAL DISCOVERY PLAN

INITIAL DISCOVERY PLAN CHECKLIST

Initial Discovery Plan Meeting Date: ___________________
Follow Up Meeting Scheduled? _______________________

DISCOVERY:
__ Discovery plan developed
__ Interrogatories sent ___ Answered by Opposition
__ Form Interrogatories sent ___ Answered by Opp.
__ Request for production of documents __ Answered by Opp.
__ Request for examination of plaintiff __ Answered by Opp.
__ Request to examine land or items __ Answered by Opp.
__ Requests for Admissions __ Answered by Opp.
__ Objections?

__ Depositions set:
__ Plaintiff
__ Defendant
__ Other_______________
_______________
_______________
__ Other discovery __________________________________
__ Motions to compel deadline checked ___________________
__ Motion filed
__ Motion served
RESPONSE TO OPPOSITION DISCOVERY

__ Interrogatories Answered and Verified

__ Form Interrogatories Answered and Verified
__ Request for Production of Documents Answered and Verified
__ Request for Admissions Answered and Verified
__ Deposition dates calendared:
__ Plaintiff
__ Defendant
__ Other
__ Other discovery answered

10

SAMPLE INITIAL DISCLOSURES

11

Example of Initial
Disclosures
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFREY L. WILHITE,
Plaintiff,
vs.
UNION PACIFIC RAILROAD
COMPANY, A Corporation,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL NO. 8:10-CV-306

JEFFREY L. WILHITES
INITIAL DISCLOSURES

COMES NOW Plaintiff, Jeffrey L. Wilhite, and pursuant to Fed. R. Civ. P. 26(a)(1) provides
the following initial disclosures:
A.

The name and, if known, the address and telephone number of each individual likely to
have discoverable information that the disclosing party may use to support its claims
or defenses, unless solely for impeachment, identifying the subjects of the information.

Plaintiff and Spouse:

Jeffrey L. Wilhite
124 DeLonge Avenue
Council Bluffs, IA 51503

Lauri Wilhite
124 DeLonge Avenue
Council Bluffs, IA 51503

Plaintiffs Attorneys:
Inserra & Kelley
6790 Grover Street, Suite 200
Omaha, NE 68106
Representatives of Defendant:
Jim Greelis
Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

Shawn Ossenfort
Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

12

There may be other representatives of Union Pacific Railroad that will be called if
discovered during the pendency of the lawsuit.
Defendants Attorneys:
David J. Schmitt
Lamson, Dugan & Murray
10306 Regency Parkway Drive
Omaha, NE 68114
Potential Witnesses:
Anne Brummett
Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

Shirley Sinnott
Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

Jeanette McKowski
Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

Vicki Dotson
Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

Keith Waeda
Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

Brett (Manager
Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

John Kerns (phonetic)

Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

Steve
Union Pacific Railroad
1400 Douglas Street
Omaha, NE 68179

Medical Providers:
Christopher Anderson, M.D.
Alegent Health Rehab Center
17021 Lakeside Hills Plaza, Ste. 200
Omaha, NE 68130

Jason Arthur, M.D.

White River Imaging, LLC

Robert Baron
CPAP Supplies

13

d/b/a Omaha Imaging

501 North 87th Street, Suite 100
Omaha, NE 68114

10481 164th Place

Orland Park, IL 60467

Richard Belatti, M.D.

Pain Management Specialist
Medical Pain Center
7837 Chicago Plaza
Omaha, NE 68114

Stephanie Cuttle, P.A.

UPREHS Clinic Omaha
1416 Dodge Street, Suite 100
Omaha, NE 68179

Rodney Czaplewski, M.D.

Total Healthcare Associates
14610 West Center Road
Omaha, NE 68144

Deborah Doud, M.D.

Physicians Clinic
Cogley-Main Clinic
One Edmundson Place
Council Bluffs, IA 51503

Don Evans, M.D.

Institute of Diagnostic Imaging
11819 Miracle Hills Drive, Suite 101
Omaha, NE 68154

Barry Fanders, M.D.

Alegent Health Bergan Mercy
Medical Center
7500 Mercy Road
Omaha, NE 68124

Robert Faulk, M.D.

Medical Imaging Consultants, P.C.
7950 Harrison Street
Omaha, NE 68128

Robert Forbes, M.D.

Diagnostic Radiology
501 North 87th Street, Suite 100
Omaha, NE 68114

Kurt Gold, M.D.

Pain Management
Physical Medicine & Rehabilitation
7919 Wakeley Plaza
Omaha, NE 68114

Leslie Hellbusch, M.D.

Midwest NeuroSurgery &
Spine Specialists
8005 Farnam Drive, Suite 305
Omaha, NE 68114

Andrea Herman, M.D.

Alegent Health L Street Clinic
5014 L Street
Omaha, NE 68117-1329

Gregory Jackson, M.D.

Alegent Health Bergan Mercy
Medical Center
7500 Mercy Road
Omaha, NE 68124

Ric Jensen, M.D.

Neurological Surgery, Inc.
4242 Farnam Street, Suite 363
Omaha, NE 68131

David Kirschner, P.A.

Steven Koukol, M.D.

14

Total Healthcare Associates

14610 West Center Road
Omaha, NE 68144

The Urology Center

111 South 90th Street
Omaha, NE 68114

Alan Kricsfeld, M.D.

Jennie Edmundson Hospital
933 East Pierce
Council Bluffs, IA 51503

S. Prizada Sattar, M.D.

Jennie Edmundson Hospital
933 East Pierce
Council Bluffs, IA 51503

Ladd Lake, M.D.

White River Imaging, LLC
d/b/a Omaha Imaging
501 North 87th Street, Suite 100
Omaha, NE 68114

Patrick Leu, M.D.

The Urology Center
112 South 90th Street
Omaha, NE 68115

Michael Longley, M.D.

Nebraska Spine Center, LLP
13616 California Street, Suite 100
Omaha, NE 68154

Patrick McClaughry, P.A.

Nebraska Spine Center, LLP
13616 California Street, Suite 100
Omaha, NE 68154

Burt J. McKeag, M.D.

UNMC
989100 Nebraska Medical Center
Omaha, NE 68198-9100

Jonathan Moravek, M.D.

Neurology
One Edmundson Place
Council Bluffs, IA 51503

Linda Naylor, RN, CCM

IntraCorp
17518 Pine Street
Omaha, NE 68130
(Nurse Case Manager hired by UP)

Shannon Nealon, PT
Excel Physical Therapy
9449 J Street
Omaha, NE 68127

Dr. Samuel Phillips

Gross, Iwersen, Kratochvil
& Klein
7710 Mercy Road, Suite 224
Omaha, NE 68124

Dr. Evelyn Else Reher

Jennie Edmundson Hospital
201 Ridge, Suite 302
Council Bluffs, IA 51503

Dr. Angie Rakes

UNMC
989100 Nebraska Medical Center
Omaha, NE 68198-9101

Charlotte Ricke
UPREHS Clinic Omaha
1416 Dodge Street, Suite 100
Omaha, NE 68179

Charles Rush, M.D.

Total Healthcare Associates

Michael Salerno, PT
Flex Physical Therapy, LLC

15

2429 M Street
Omaha, NE 68107-2715

928 Valley View Drive, Suite 7

Council Bluffs, IA 51503

Christian Schlaepfer, M.D.

Midwest NeuroImaging
8005 Farnam Drive, Suite 202
Omaha, NE 68114

Michael Schuster, M.D.

Radiology Consultants, P.C.
P.O. Box 4460
Omaha, NE 68104

Rex Schmidt, Psy.D.

501 North 87th Street
Omaha, NE 68114-2881

Lynn Meece, R.N.

Nebraska Medical Center
Pain Management Clinic
989100 Nebraska Medical Center
Omaha, NE 68198

Adrienne Connor, PT
Nebraska Medical Center
Pain Management Clinic
989100 Nebraska Medical Center
Omaha, NE 68198

Methodist Health System

Behavioral Health Clinic
10060 Regency Circle
Omaha, NE 68114

Kimberly Spangler, M.D.

8141 West Center Road
Omaha, NE 68124

Jane Theobald, Ph.D.

Behavioral Health
8303 Dodge Street
Omaha, NE 68114

Scott Wilt, MD
Northwest Anesthesia, P.C.
P.O. Box 31668
Omaha, NE 68131

Alegent Health Bergan Mercy Medical Center

7100 Mercy Road
Omaha, NE 68124

Alegent Health
Immanuel Medical Center
6901 North 72nd Street
Omaha, NE 68122

Hangar P & O East, Inc.

4239 Farnam Street, Suite 839
Omaha, NE 68102

Mercy Hospital
800 Mercy Drive
Council Bluffs, IA 51503

Midwest Pathology Specialists

800 Mercy Drive
Council Bluffs, IA 51503

Progressive Rehabilitation, Inc.

7919 Wakeley Plaza
Omaha, NE 68114

Quality Inn Therapies, Inc.

1941 South 42nd Street
Suite 400
Omaha, NE 68105

Walgreens

White River Imaging, LLC

16

535 East Broadway

Council Bluffs, IA 5103

d/b/a Omaha Imaging

501 North 87th Street, Suite 100
Omaha, NE 68114

Family Counseling:
Carl Spence
Spence Counseling Center
12035 Q Street
Omaha, NE 68137
Economic Report:

Life Care Plan:

Jerome F. Sherman, Ph.D.

9947 Essex Drive
Omaha, NE 68114

Shelly Kinney
Kinney Consulting, Inc.
6315 South 79th Circle
Ralston, NE 68127

Retirement Benefits:
Railroad Retirement Board
111 South 18th Plaza, Suite C125
P.O. Box 815
Omaha, NE 68101-0815

B.

A copy of, or a description by category and location of, all documents, data
compilations, and tangible things in the possession, custody, or control of the party
that the disclosing party may use to support its claims or defenses, unless solely for
impeachment.
A complete copy of all medical records and bills, including the
detailed demand package has been provided to the defendant via
CD-Rom, along with a copy of the detailed narrative demand
package. Discovery is ongoing.

C.

A computation of any category of damages claimed by the disclosing party, making

17

available for inspection and copying as under Rule 34 the documents or other
evidentiary material, not privileged or protected from disclosure, on which such
computation is based, including materials bearing on the nature and extent of injuries
suffered.
Plaintiff requests special damages and general damages as listed in their
demand made upon defendant on or about July 28, 2010 and provided to the
defendant via CD-Rom.

D.

For inspection and copying as under Rule 34 any insurance agreement under which
any person carrying on an insurance business may be liable to satisfy part or all of a
judgment which may be entered in the action or to indemnify or reimburse for
payments made to satisfy the judgment.
None as to Plaintiff.

JEFFREY L. WILHITE, Plaintiff,

s/John P. Inserra
Nebraska Bar #15084
INSERRA & KELLEY
6790 Grover Street, Suite 200
Omaha, Nebraska 68106-3612
Telephone: (402) 391-4000
Facsimile: (402) 391-4039
Attorneys for Plaintiff
jpinserra@inserra.com

CERTIFICATE OF SERVICE

18

The undersigned hereby certifies that on September 21, 2010, the undersigned electronically
filed the foregoing document with the Clerk of the Court by using the CM/ECF system, which sent
notification of such filing upon all parties who filed an appearance or motion by electronic filing in this
case.
David J. Schmitt, #19123
Lamson, Dugan & Murray, LLP
10306 Regency Parkway Drive
Omaha, NE 68114
dschmitt@ldmlaw.com
Attorneys for Defendant

s/John P. Inserra
Nebraska Bar #15084
INSERRA & KELLEY
6790 Grover Street, Suite 200
Omaha, Nebraska 68106-3612
Telephone: (402) 391-4000
Facsimile: (402) 391-4039
Attorneys for Plaintiff
jpinserra@inserra.com

19

SAMPLE INITIAL WRITTEN DISCOVERY

REQUESTS (WC)

20

IN THE NEBRASKA WORKERS COMPENSATION COURT

,
SS #
Plaintiff,
vs.
(employer)
address
City,State, ZIP
and
(W-Comp Carrier)
address
City, State, ZIP
Defendants.

TO:

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

DOC.

PAGE

PLAINTIFFS REQUESTS FOR

ADMISSIONS,
INTERROGATORIES, AND
FOR PRODUCTION
OF DOCUMENTS

DEFENDANTS by and through their attorney of record, ___________________

Plaintiff hereby requests, pursuant to Nebraska Discovery Rules 33, 34, and 36, that the

Defendants answer, under oath, the following requests for admissions, interrogatories, and motions
for production within thirty (30) days of service of this request as required by law.
It is understood that the answers will contain the composite knowledge of the Defendants and
any of the Defendants representatives or agents. These interrogatories shall be deemed continuing,
and if additional information should be discovered after originally answering them with respect to
any of the matters inquired about, then it is expected that such information will be promptly revealed
to the Plaintiff or Plaintiff's attorneys as required by law.

DEFINITIONS
1. The term "person" as used in these Interrogatories means all individuals and entities,
including any individual, firm, corporation, partnership, association, company, receiver, joint
venture, estate, trust, or other form of entity, including the parties to this litigation and their officers,
agents, employees and representatives.
2.

The term "document" as used in these interrogatories means any written, printed,

typed, recorded, or graphic matter of every type and description, however and by whomever
1

21

prepared, produced, reproduced, disseminated, or made, in your actual or constructive possession,

custody, or control, including, but not limited to, all writings, letters, minutes, bulletins,
correspondence, telegrams, memoranda, notes, instructions, literature, work assignments, notebooks,
records, sales forms, agreements, contracts, notations of telephone or personal conversations or
conferences, interoffice communications, microfilm, circulars, pamphlets, advertisements, catalogs,
studies, notices, summaries, reports, books, invoices, graphs, photographs, drafts, data sheets, data
compilations, computer data sheets, computer data compilations, work sheets, statistics, speeches
and other writings, tape recordings, transcripts of tape recordings, phonograph records, data
compilations from information which can be obtained or can be translated through detection into
reasonably usable form, charts, minutes, checks, check stubs, delivery tickets, bills of lading,
invoices, flow sheets, price lists, quotations, bulletins, permits, forms, data processing cards, data
sheets, surveys, indexes, tapes, videotapes, film, periodicals, circulars, manuals, or any other
tangible thing.
Additionally, the term document includes any and all information retained through
computer references, and any and all other sources, including, but not limited to any database
maintained by defendant or any of its subsidiaries. This includes all documents and data existing in
electronic form (in the broadest sense consistent with Fed. R. Civ. P. 34(a) or its state law
equivalent, Nebraska Rules of Discovery 33 and 34), including e-mail, electronic peer-to-peer
messages, word processing documents, spreadsheets, electronic slide presentations, databases, and
other electronic data items, now existing or hereafter created, containing information that can
reasonably be anticipated to be relevant to facts at issue in the litigation (discoverable electronic
information).
3.

The term "identify" as used in these Interrogatories means to set forth:

(a)

When used with referenced to a person, firm, or corporation;

(i)
(ii)
(iii)
(iv)

(b)

the full name;

the present or last known business address and if an individual;
the present or last known home address; and
the position and title, if any, and a description of his or her duties and
responsibilities in connection with that position.

When used with reference to a document:

22

(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
4.

the date on the document and the date the document was prepared;
the identity of person preparing the document and that person's name
and address;
the identity of the person for whom the document was prepared;
the name and address of each person to whom it addressed;
a description of the document;
the present location of the document; and
the contents and subject matter of the document.

As used in these requests, the terms "you", or "your", and "yours" refer to the

individual defendant answering these Interrogatories and its officers, employees, agents,
representatives, divisions, subdivisions, affiliated companies, parent companies, and any and all
other persons acting or purporting to act on its behalf.
REQUEST FOR ADMISSIONS
1.

REQUEST FOR ADMISSION

Please admit the plaintiff had an accident arising

out of and in the course of employment with the defendant on or about the date alleged in plaintiffs
petition.
RESPONSE:

2.

REQUEST FOR ADMISSION

Please admit that the plaintiff gave notice to the

defendant of the accident and injury alleged in plaintiffs petition.

RESPONSE:

3. REQUEST FOR ADMISSION Please admit that the accident on the date alleged in
plaintiffs petition caused plaintiff to suffer the injury or injuries alleged in the petition.
RESPONSE:
4.

REQUEST FOR ADMISSION Please admit that plaintiffs disability claimed in

plaintiffs Petition is not the result of an intervening accident which occurred outside the scope and
course of plaintiffs employment with the defendant.
RESPONSE:

23

5.

REQUEST FOR ADMISSION

Please admit that the plaintiff has not lost or

relinquished the right to make the initial selection of physician.

RESPONSE:

6.

REQUEST FOR ADMISSION Please admit that the plaintiffs claim is not barred

by the Statute of Limitations.

RESPONSE:
INTERROGATORIES
1.

INTERROGATORY Please specify the following information even if Request for

Admission No. 2 is admitted:

a.

Name and phone number of all eyewitnesses to the accident and injury alleged in
plaintiffs petition;

b.

Name and phone number of all co-workers at plaintiffs work site on or about the
date of the accident and injury alleged in plaintiffs petition;

c.

Name and phone number of plaintiffs immediate superior or supervisor on or about

the date alleged in plaintiffs petition.

ANSWER:

2.

INTERROGATORY Please provide the names and addresses of all witnesses the

defendant expects to call at trial of this matter.

ANSWER:
3.

INTERROGATORY Has the Defendant or its Nebraska workers' compensation

insurer requested that the Plaintiff consult with or be examined by any physician?
ANSWER:

4.

INTERROGATORY If the answer to the preceding Interrogatory is affirmative,

4

24

please state:
(a)

The date of such examination or treatment;

(b)

The nature of such examination or treatment;

(c)

The name and address of the person or persons providing the treatment or
conducting the examination.
ANSWER:

5.

INTERROGATORY In the event you have denied any Request For Admission,

please set forth the name and phone number of all persons who have knowledge or provided
information relied upon for said denial and your basis for each denial.
ANSWER:

6.

INTERROGATORY Please set forth the provider and the amount of each

hospital, medical, and drug bill which you have received concerning the Plaintiff's accident since
the date of the accident.
ANSWER:

7.

INTERROGATORY Please itemize those expenses which have been paid and

the date of payment.

ANSWER:

8.

INTERROGATORY If the defendant is denying payment of certain medical bills

in connection with the injuries claimed in the plaintiffs Petition, please list which bills defendant
refuses to pay.
ANSWER:

25

9.

INTERROGATORY

Please state the hours the plaintiff has worked for the

employer each week since the date of the accident or injury alleged in plaintiffs petition until the
date of maximum medical improvement, if such medical status has been reached, and wage rate of
each of those hours of employment. (If MMI has not been reached at this time, please provide said
wage and hour information through and including date of these Requests for Discovery).
ANSWER:

10.

INTERROGATORY Please set forth a true and correct listing of all amounts

paid by any Defendant to the Plaintiff in temporary total, temporary partial, and permanent
partial disability benefits and the dates or periods for which such payments were made.
ANSWER:

11.

INTERROGATORY Please provide a list of exhibits the defendant intends to offer

at trial of this matter.

ANSWER:

12.

INTERROGATORY Do you maintain any electronic documents in any way

referencing the accident or injury which is the subject of this litigation?

ANSWER:

REQUEST FOR PRODUCTION

1.

REQUEST FOR PRODUCTION Please produce to the plaintiff for inspection all

medical bills which the defendant refuses to pay.

RESPONSE:

26

2.

REQUEST FOR PRODUCTION Please review the attached exhibit list for the

Plaintiff and produce any documents relating to the following that is in your possession and not
already on our list:
a.

All medical information including records, reports, correspondence, and bills;

b.

Application for employment and pre-employment tests and results;

c.

All First Reports of Injury;

d.

Choice of physician forms or records;

e.

All nurse case manager or similar records, including correspondence between the
nurse and employer or claims adjuster;

f.

26-week earnings record preceding the accident date in question;

g.

Wage and hour information from date of accident to the present date;

h.

Summary of benefits paid, both medical and indemnity;

i.

Job Descriptions of all positions worked by the plaintiff for the defendant;

j.

Transcribed recorded statement of my client;

k.

Employee personnel file.

RESPONSE:

3.

REQUEST FOR PRODUCTION

Please produce any videotapes or other

surveillance taken of plaintiff in the above-referenced matter.

RESPONSE:
4.
REQUEST FOR PRODUCTION

Any and all memoranda, notes, reports, or

other documents concerning the investigation of plaintiffs injury, which was written or compiled by
someone not then acting on your behalf.
RESPONSE:

5.

REQUEST FOR PRODUCTION

Any and all electronic mail (e-mail)

27

containing discoverable electronic information.

RESPONSE:

6.

REQUEST FOR PRODUCTION

Any and all word processing files, computer

presentations (e.g., PowerPoint slides), stand alone databases (e.g., Acess), spreadsheets (e.g., Excel)
containing discoverable electronic information.
RESPONSE:

7.

REQUEST FOR PRODUCTION

Any and all electronically stored research

and/or reference literature and materials containing discoverable electronic information.

RESPONSE:

8.

REQUEST FOR PRODUCTION

Any and all copies of defendants electronic

document and data retention policy designed to ensure the retention of defendants discoverable
electronic information.
RESPONSE:

DATED this ______ day of ______________ 2005.

_____________, Plaintiff

By:

_____________________________
Jeffrey F. Putnam, # 21527
INSERRA & KELLEY
6790 Grover St. -- Suite 200
Omaha, NE 68106-3612
(402) 391-4000/391-4039 - Fax

28

Attorneys for Plaintiff

CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing document was sent by United States mail,
postage prepaid, to the following on the ___ day of ______ 2005 to defendants, by and through their
attorney of record, _____________

__________________________________

29

EDISCOVERYSTATEBYSTATELISTING

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Current Listing of States That Have Enacted E-Discovery Rules : Electron...

http://www.ediscoverylaw.com/2008/10/articles/resources/current-listing...

Posted at 8:37 AM on October 10, 2008 by K&L Gates

Current Listing of States That Have Enacted E-Discovery Rules

More and more states are adopting statutes and court rules addressing the discovery of electronically stored
information. Here is a current list with links to the relevant provisions.
Alabama
Amendments to Rules of Civil Procedure 16, 26, 33(c), 34, 37, 45 and Form 51A
Effective Feb. 1, 2010
Alaska
Amendments to the Rules of Civil Procedure 16, 26, 33, 34, 37, and 45
Effective April 15, 2009
Arizona
Amendments to Rules of Civil Procedure 16, 16.3, 26, 26.1, 26.2, 33, 34, 37 and 45
Effective January 1, 2008
Amendments to Arizona Rules of Family Law Procedure
Ariz. R. Family Law P. 49 Disclosure
Ariz. R. Family Law P. 51 Discovery
Ariz. R. Family Law P. 52 Subpoena
Ariz. R. Family Law P. 62 Production of Documents and Things and Entry
Upon Land for Inspection and Other Purposes
Ariz. R. Family Law P. 65 Failure to Make Disclosure or Discovery; Sanctions
Effective January 1, 2009
Ariz. R. Evid. 502
Effective January 1, 2010
Arkansas
Rules 26 General Provisions Governing Discovery (See section 26(b)(5))
Effective January 10, 2008
Arkansas Rule of Evidence 502. Lawyer Client Privilege
Effective January 10, 2008
Ark. R. Civ. P. 26.1 Electronic Discovery
Effective Oct. 1, 2009
California

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California Code of Civil Procedure

Title 4. Civil Discovery Act
Chapter 1. General Provisions
Chapter 14. Inspection and Production of Documents, Tangible Things, Land, and Other
Property
Article 1. Inspection Demand
Article 2. Response to Inspection Demand
Chapter 12. Discovery in Action Pending Outside California
Article 1. Interstate and International Depositions and Discovery Act
Title 3. Of the Production of Evidence
Chapter 1. Means of Production
Rule 3.724 Duty to meet and confer
As Amended, Effective Aug. 14, 2009
Connecticut
Connecticut Practice Book, Superior Court Procedures in Civil Matters
Sec. 13-9. Requests for Production, Inspection and Examination; In General (see subsection (d), at p. 192 of
259-page .pdf document)
Effective January 1, 2006
Florida
1.201 Complex Litigation
Idaho
Idaho R. Civ. P. 33
Idaho R. Civ. P. 34
Effective July 1, 2006
Idaho R. Civ. P. 45
Effective July 1, 2009
Illinois
Illinois Supreme Court Rules 201(b)(1) and 214
Effective January 1, 1996
Indiana
Indiana Rules of Trial Procedure
Rule 26. General provisions governing discovery
Rule 34. Production of documents, electronically stored information, etc.
Rule 37. Failure to make or cooperate in discovery; Sanctions
Iowa
Amendments to Rules of Civil Procedure 1.503, 1.504, 1.507, 1.509, 1.512, 1.517, 1.602
Effective May 1, 2008
Iowa District Court Trial Scheduling Order
Rule 23.5 Form 2: Trial Scheduling Order
Effective September 1, 2008

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Iowa Rule of Evidence 5.502

Effective June 1, 2009
Amendments to Rules of Civil Procedure:
Iowa R. Civ. P. 1.1701 Subpoena
Form 13
Subpoena Form to Testify at Deposition or Produce Documents
Form 14
Subpoena Form to Testify at Hearing or Trial
Form 15
Subpoena From to Produce Documents or Permit Inspection
Effective Oct. 9, 2009
Kansas
Amendments to the Rules of Civil Procedure:
60-216 Pretrial conferences; case management conference
60-226 General Provisions Governing Discovery
60-233 Interrogatories to Parties
60-234 Production of Documents, Electronically Stored Information and Things and
Entry Upon Land for Inspection and Other Purposes
60-237 Failure to Allow Discovery; Sanctions
60-245 Subpoenas
Effective July 1, 2008
Louisiana
CCP 1424 - Scope of discovery; trial preparation; materials
CCP 1460 - Option to produce business records
CCP 1461 - Production of documents and things; entry upon land; scope
CCP 1462 - Production of documents and things; entry upon land; procedure
Approved June 25, 2007
CCP 1354 - Subpoena deuces tecum
CCP 1471 - Failure to comply with order compelling discovery; sanctions
CCP 1551 - Pretrial and scheduling conference; order
Effective January 1, 2009
Maine
Amendments to Rules of Civil Procedure 16, 26, 33, 34, 37
Corrections to amendments to rules 34 and 37
Effective August 1, 2008
Maryland
Amendments to Rules 2-402, 2-421, 2-422, 2-424, 2-433, 2-504, 2-504.1, and 2-510
Effective January 1, 2008
Michigan
2.302 General Rules Governing Discovery
2.310 Requests for Production of Documents and Other Things; Entry on Land for Inspection and Other
Purposes
2.313 Failure to Provide or Permit Discovery; Sanctions
2.401 Pretrial Procedures; Conferences Scheduling Orders
2.506 Subpoena; Order to Attend
Effective January 1, 2009
Minnesota

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Minnesota Rules of Civil Procedure

Rule 16. Pretrial Conference; Scheduling; Management
Rule 26. General Provisions Governing Discovery
Rule 33. Interrogatories to Parties
Rule 34. Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for
Inspection and Other Purposes
Rule 37. Failure to Make Discovery or Cooperate in Discovery: Sanctions
Rule 45. Subpoena
Mississippi
Miss. R. Civ. P. 26(b)(5)
Effective May 29, 2003
Missouri
Rules of the Court of the Twenty-fifth Judicial Circuit (Maries, Phelps, Pulaski and Texas Counties)
Rule 32.3 Electronic Discovery
Montana
Mont. R. Civ. P. 16(b). Scheduling and planning
Mont. R. Civ. P. 26(b). Discovery scope and limits
Mont. R. Civ. P. 26(f). Discovery conference
Mont. R. Civ. P. 33(c). Option to produce business records
Mont. R. Civ. P. 34(a). Scope
Mont. R. Civ. P. 34(b). Procedure
Mont. R. Civ. P. 37(e). Electronically stored information
Mont. R. Civ. P. 45(a). Form issuance
Mont. R. Civ. P. 45(c). Protection of persons subject to or affected by subpoenas
Mont. R. Civ. P. 45(d). Duties in responding to subpoena
Effective February 28, 2007
Nebraska
Neb. Ct. R. of Discovery 6-333 Interrogatories to parties
Neb. Ct. R. of Discovery 6-334 Production of documents, electronically stored
information, and things and entry upon land
for inspection and other purposes
Neb. Ct. R. of Discovery 6-334A Discovery from a non-party without a deposition
Effective July 18, 2008
New Hampshire
Superior Court Rule 62. (I) Initial Structuring Conference (see subsection (C)(4))
Effective March 1, 2007
New Jersey
Part IV Rules Governing Civil Practice in the Superior Court, Tax Court and Surrogates Courts
Rule 1:9. Subpoenas
Rule 4:5B. Case Management; Conferences
Rule 4:10. Pretrial Discovery
Rule 4:17. Interrogatories to Parties
Rule 4:18. Discovery and Inspection of Documents and Property; Copies of Documents
Rule 4:23. Failure to Make Discovery; Sanctions
Effective September 1, 2006

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Part VII Rules Governing Practice in Municipal Courts

Rule 7:7 Pretrial Procedures
New Mexico
Rule 1-016 Pretrial conferences; scheduling; management.
Rule 1-026 General provisions governing discovery.
Rule 1-033 Interrogatories to parties.
Rule 1-034 Production of documents and things and entry upon land for inspection and other purposes.
Effective May 15, 2009
Rule 1.045 Subpoena.
Rule 1.045.1 Interstate subpoenas.
Effective August 7, 2009
New York
Uniform Civil Rules of the Supreme and County Courts, 202.70 Commercial Division of the Supreme Court
See Rule 1. Appearance by Counsel with Knowledge and Authority.
Effective July 27, 2010
See Rule 8. Consultation prior to Preliminary and Compliance Conferences.
Effective January 17, 2006
Uniform Civil Rules for the Supreme Court and the County Court
Amendment to Section 202.12 Preliminary conference (subsection (c))
Nassau County Supreme Court, Commercial Division Rules
Guidelines for Discovery of Electronically Stored Information (ESI)
Form: Preliminary Conference Stipulation and Order
Onondaga County Supreme Court, Commercial Division Rules
Form 2: Preliminary Conference Stipulation and Order, Hon. Deborah Karalunas
Queens County Supreme Court, Commercial Division Rules
See Conferences Rule 5. Consultation among counsel prior conferences
Suffolk County Supreme Court, Commercial Division Rules
Form: Preliminary Conference Stipulation and Order, Hon. Elizabeth H. Emerson
Westchester County Supreme Court, Commercial Division Rules
Form 1: Preliminary Conference Order Commercial Case, Hon. Alan Scheinkman
North Carolina
Local Rules of North Carolina Business Court
See Rule 17.1 Case Management Meeting
See Rule 18.6 Conference of Attorneys with Respect to Motions and Objections Relating to Discovery
Effective July 31, 2006
Rules for Superior Court Judicial District 15B
Rule 6. Discovery
Effective July 1, 2008
North Dakota
North Dakota Supreme Court Rules N.D.R. Civ. P. 16, 26, 33, 34, 37, 45 and Form 20
Effective March 1, 2008

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Oklahoma
Rule 5. Pretrial Proceedings
Effective February 9, 2010
Chapter 39. Oklahoma Pleading Code
Section 2004.1 Subpoena
Chapter 41. Discovery Code.
Section 3226 General Provisions Governing Discovery
Section 3233 Interrogatories to Parties
Section 3234 Production of Documents and Things and Entry upon Land for Inspection and Other
Purposes
Section 3237 Failure to Make or Cooperation in Discovery Sanctions
Effective November 1, 2010
Ohio
Amendments to Rules of Civil Procedure 16, 26, 33, 34, 37, and 45
Effective July 1, 2008
Tennessee
Rule 16 Scheduling and Planning, Pretrial, and Final Pretrial Conferences and Orders
Rule 26 General Provisions Governing Discovery
Rule 33 Interrogatories to Parties
Rule 34 Production of Documents and Things and Entry Upon Land for Inspection and Other Rule Purposes
Rule 37 Failure to Make or Cooperate in Discovery: Sanctions
Rule 45 Subpoena
Effective July 1, 2009
Rule 502 Limitations on Waiver of Privileged Information or Work Product
Effective July 1, 2010
Texas
Tex. R. Civ. P. 196.4 Electronic or Magnetic Data
Effective January 1, 1999
Utah
Utah R. Civ. P. 33. Interrogatories to parties
Utah R. Civ. P. 34. Production of documents and things and entry upon land for inspection and other
purposes
Utah R. Civ. P. 37. Failure to make or cooperate in discovery; sanctions
Effective November 1, 2007
Utah R. Civ. P. 26 General Provisions Governing Discovery
Effective November 2008
Utah R. Civ. P. 45 Subpoena
Effective April 1, 2009
Vermont
Amendments to Rules of Civil Procedure:
Vt. R. Civ. P. 16.2 Scheduling Orders
Vt. R. Civ. P. 26
General Provisions Governing Discovery
Vt. R. Civ. P. 33
Interrogatories to Parties
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Vt. R. Civ. P. 34
Vt. R. Civ. P. 37
Vt. R. Civ. P. 45
Effective July 6, 2009

http://www.ediscoverylaw.com/2008/10/articles/resources/current-listing...

Production of Documents and Things and Entry Upon Land for

Inspection and Other Purposes
Failure to Make Discovery: Sanctions
Subpoena

Virginia
Amendments to the Rules of Civil Procedure 4:4, 4:8, 4:9, 4:9A, and 4:13
Effective January 1, 2009
Rule 4:1 General Provisions Governing Discovery
Effective May 3, 2010
Washington
ER 502 Attorney-Client Privilege and Work Product; Limitations on Waiver
Effective September 1, 2010
Wyoming
Wyo. R. Civ. P. 16 Pretrial Conferences; Scheduling; Management
Wyo. R. Civ. P. 26 General Rules Governing Discovery, Duty of Disclosure
Effective July 1, 2010
Wyo. R. Civ. P. 45
Subpoena
Effective Oct. 1, 2009
Wyo. R. Civ. P. 33
Wyo. R. Civ. P. 34
Wyo. R. Civ. P. 37
Effective July 1, 2008

Interrogatories to Parties
Production of Documents, Electronically Stored Information, and
Things and Entry Upon Land for Inspection and Other Purposes
Failure to Make Disclosures or Cooperate in Discovery; Sanctions

We will post additional state e-discovery rules as they are enacted.

Trackbacks (6)
Electronic Discovery Law - June 19, 2008 2:10 PM
Nebraska On June 4, 2008, the Nebraska Supreme Court adopted amendments to Neb. Ct. R. of Discovery,
33, 34, and 34A that address the discovery of electronically stored information. The amended rules are
available here, and went into effect June...

Electronic Discovery Law - October 10, 2008 9:00 AM

The Supreme Court of Ohio has adopted several amendments to the Ohio Rules of Civil Procedure, including
several related to electronic discovery. The amendments, which took effect on July 1, 2008, include changes
to Rules 16, 26, 33, 34, 37,...

Electronic Discovery Law - November 24, 2008 1:59 PM

According to a Revisors note: The former Nebraska Discovery Rules for All Civil Cases have been
renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery

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in Civil Cases. Thus, former rule 26...

Electronic Discovery Law - December 31, 2008 8:10 AM

Effective August 1, 2008, Maine has adopted amendments to its Rules of Civil Procedure to address the
need for specific treatment of the discovery of electronically stored information. As stated in the Advisory
Committee Note to Rule 16, ...

Electronic Discovery Law - January 9, 2009 1:08 PM

Arizonas Supreme Court has approved amendments to Arizonas Rules of Family Law Procedure that will
address several major e-discovery issues. The amended rules are based on Arizonas Rules of Civil Procedure
and will become effective...

Computer Forensics and E-Discovery Blog - March 26, 2009 9:58 AM

I came across several interesting items this week so this post is going to be about a variety of things. The
Round Table Group, an expert services firm, approached me about writing an article for their newsletter.
They wanted...

Comments (1)
Kae Warnock - July 8, 2008 11:58 AM
This is an excellent list of state laws and court rules.
NCSL is presenting a session on e-discovery for legislative attorneys at our Legislative Summit this month.
May I have permission to reprint the printable version of this list (with attribution, of course)

This blog/Web site is made available by the contributing lawyers or law firm publisher solely for educational
purposes to provide general information about general legal principles and not to provide specific legal advice
applicable to any particular circumstance. By using this blog/Web site, you understand that there is no
attorney client relationship intended or formed between you and the blog/Web site publisher or any
contributing lawyer. The blog/Web site should not be used as a substitute for competent legal advice from a
lawyer you have retained and who has agreed to represent you.
K&L Gates is comprised of multiple affiliated entities: a limited liability partnership with the full name K&L
Gates LLP qualified in Delaware and maintaining offices throughout the United States, in Berlin and
Frankfurt, Germany, in Beijing (K&L Gates LLP Beijing Representative Office), in Dubai, U.A.E., in
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partnership (also named K&L Gates LLP) incorporated in England and maintaining offices in London and
Paris; a Taiwan general partnership (K&L Gates) maintaining an office in Taipei; a Hong Kong general
partnership (K&L Gates, Solicitors) maintaining an office in Hong Kong; and a Delaware limited liability
company (K&L Gates Holdings, LLC) maintaining an office in Moscow. K&L Gates maintains appropriate
registrations in the jurisdictions in which its offices are located. A list of the partners or members in each
entity is available for inspection at any K&L Gates office.

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Portions of this Web site may contain Attorney Advertising under the rules of some states. Prior results do not
guarantee a similar outcome.
Ediscovery Law Firm, Document Analysis Technology Group and Records Management Practice of K&L
Gates, offering services related to ediscovery, review of electronic documents, electronic discovery and
electronic evidence discovery.
K&L Gates LLP
925 Fourth Avenue, Suite 2900, Seattle, Washington 98104-1158
p. 206.623.7580, f. 206.623.7022

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SAMPLE E-DISCOVERY REQUESTS

40

TO:
Plaintiff hereby requests, pursuant to Nebraska Discovery Rule 36, the defendant
answer, under oath, the following requests for admissions of the truth of any matters within the
scope of Rule 26(b) set forth in the request, including the genuineness of any documents
described herein, within thirty (30) days of service of this request as required by law.
It is understood that the answers will contain the composite knowledge of the Defendants
and any of the Defendants' representatives or agents.

These Requests shall be deemed

continuing, and if additional information should be discovered after originally answering them
with respect to any of the matters inquired about, then it is expected that such information will be
promptly revealed to the Plaintiff or Plaintiff's attorney as required by law.

DEFINITIONS
1.

Computer shall include computers, software, hardware, mobile phone, pda,

palm pilot, blackberry or other electronic equipment, including but not limited to
any audit trails relating to each device.

2.

Document shall include any written, recorded or graphic mailer, however

produced or reproduced and whether or not now in existence, including, but not
limited to, correspondence, telegrams, photographs, notes or sound or visual
recordings of any type of personal or telephone conversations, or of meetings or
conferences, minutes of directors or committee meetings, memoranda, interoffice
communications, studies, analyses, reports, results of investigations, reviews,
contracts, agreements, working papers, statistical records, ledgers, books of
account, financial statements and journals, vouchers, bank checks, invoices,
receipts, computer data, stenographers notebooks, desk calendars, appointment
books, and diaries or papers similar to any of the foregoing, however
denominated. It includes all mailer that relates to or refers in whole or in part to

Plaintiffs Supplemental Discovery Requests- 1

41

the subjects referred to in a Request. If a Document has been prepared in several

copies, or additional copies have been made, and the copies are not identical (or
which, by reason of subsequent modification, are no longer identical), each
nonidentical copy is a separate Document. The term document expressly
includes electronic files, including all files and data compilations of any kind,
in any electronic medium, including computer files, data files, databases,
electronic files, or documents contained on computer disks, tapes, diskettes, hard
drives, or any other form of computer or data backup, AND SHALL
SPECIFICALLY INCLUDE ANY INFORMATION CONTAINED WITHIN
THE ARCHABUS SYSTEMS.
3.

Maintenance Data shall include any data sent to or from any member of
maintenance regarding any issue. All below requests shall be limited in time as
to the period of time from when the door that is the subject of this lawsuit was
installed to the present.

INTERROGATORIES
INTERROGATORY NO. 18:

Do you have a written policy for the retention

and/or destruction of documents?

ANSWER:

INTERROGATORY NO. 19:

Has destruction or overwriting of documents ever

been suspended and if so, please specify the dates.

ANSWER:

INTERROGATORY NO. 20:

Please state the name, address and phone number of

the person with the most knowledge of the retention and destruction at your place of business.
ANSWER:

INTERROGATORY NO. 21:

During the period from when the door that is the

subject of this lawsuit was installed to the present, have any documents at your place of business

Plaintiffs Supplemental Discovery Requests- 2

42

been destroyed? If so, please state which electronic files have been deleted from the magnetic or
optical storage media or overwritten from that date to the present, and dates of destruction or
overwriting.
ANSWER:

INTERROGATORY NO. 22:

List

all

operating

systems

installed

on

all

computers, mobile phones, pdas, palm pilots, blackberries or other electronic equipment on
which data is stored used by your business, the specific equipment on which the operating
system was installed, and the period during which it was installed on the specific equipment.
ANSWER:

INTERROGATORY NO. 23:

As to the storage of data generated by the users of

your computers, mobile phones, pdas, palm pilots, blackberries or other electronic equipment
(such as word-processor files, work orders, data files, and email):
If the data is backed up on tape or other media, please state:
a. The number of media currently existing with backup data;
b. The maximum storage size for each such media;
c. The brand name for each such media;
d. The last time each such media was backed up;
e. The computer or other hardware for each such backup.
ANSWER:

INTERROGATORY NO. 24:

State the physical location and current user of each

computer, mobile phone, pda, palm pilot, blackberry or other electronic equipment (such as
word-processor files, work orders, data files, and email) or other hardware listed in the previous
Interrogatories.
ANSWER:

INTERROGATORY NO. 25:

Provide a list of all personnel responsible for

maintaining computer hardware, data or information systems on computers for your place of

Plaintiffs Supplemental Discovery Requests- 3

43

business, including name, position, title, contact information, and official job description and list
of duties.
ANSWER:

INTERROGATORY NO. 26:

Does your place of business maintain a policy

regarding use of removable media in its workstations, computers, mobile phones, pdas,
blackberries, or networks?
ANSWER:

INTERROGATORY NO. 27:

List all hardware components installed internally or

externally to the computers, workstations, mobile phones, pdas, blackberries or networks of your
maintenance department during the period from when the door that is the subject of this lawsuit
was installed to the present.
ANSWER:

INTERROGATORY NO. 28:

List all log files, including audit trails, found on

computers, workstations, mobile phones, pdas, blackberries or your businesss network, and the
equipment and logical path where the log files or audit trails can be found.
ANSWER:

INTERROGATORY NO. 29:

Do any employees of your business use portable

devices in the course of their employment that are not connected to your businesss network, and
that are not backed up or archived? If so, list all users and the devices they use.
ANSWER:

INTERROGATORY NO. 30:

Any graphic representation of the components of

your computer network, and the relationship of those components to each other, including but
not limited to flow charts, videos or photos, and drawings.
ANSWER:

Plaintiffs Supplemental Discovery Requests- 4

44

INTERROGATORY NO. 31:

List all telephone equipment provided by your place

of business or used by its maintenance employees to perform work.

ANSWER:

INTERROGATORY NO. 32:

List any and all user identification numbers and

passwords necessary to access computers or programs addressed in these interrogatories and

requests.
ANSWER:

INTERROGATORY NO. 33:

Please provide copies of your computer security

policies and procedures and the name and contact information for the person responsible for
security.
ANSWER:

REQUESTS FOR PRODUCTION

REQUEST NO. 6:

Produce any and all company organizational and policy

information in its entirety, including but not limited to organizational charts, corporate policy
and procedure manuals, policy memoranda, system schematic, audit trail procedure, network
topology, system restart procedure, email retention policies, and other related information.
RESPONSE:
REQUEST NO. 7:

Produce any and all documents and things related to networks or

groups of connected computers that allow people to share information and equipment.
RESPONSE:
REQUEST NO. 8:

Produce any and all information related to email, including but not

limited to current, backed-up and archived programs, accounts, unified messaging, server-based
email, Web-based e-mail, dial-up email, user names and addresses, domain names and addresses,
email messages, attachments, manual and automated mailing lists and mailing list addresses as it
pertains to maintenance or the vendors used by maintenance.
RESPONSE:

Plaintiffs Supplemental Discovery Requests- 5

45

REQUEST NO. 9:

Please produce copies of any and all written policies for the

retention of documents.
RESPONSE:
REQUEST NO. 10: Please produce copies of any and all written policies for the
destruction of documents.
RESPONSE:
REQUEST NO. 11: Please produce all backup and/or archive maintenance media,
during the period from when the door that is the subject of this lawsuit was installed to the
present.
RESPONSE:
REQUEST NO. 12: Produce any backup or archived maintenance data during the
period from when the door that is the subject of this lawsuit was installed to the present.
RESPONSE:
REQUEST NO. 13: Provide the names of all of your businesss information systems or
information technology personnel during the period from when the door that is the subject of this
lawsuit was installed to the present.
RESPONSE:
REQUEST NO. 14: Produce any and all devices used to place information on loose or
removable storage media, including but not limited to hard drives, floppy drives, CD-Rom
drives, tape drives, recordable DVD-ROM drives and removable drives.
RESPONSE:
REQUEST NO. 15: Please produce the blackberries, including their magnetic or optical
storage media, for inspection and copying, used by maintenance during the period from when the
door that is the subject of this lawsuit was installed to the present.
RESPONSE:

Plaintiffs Supplemental Discovery Requests- 6

46

REQUEST NO. 16: Provide any and all documentation of software and hardware
modifications to the computers used by maintenance during the period from when the door that
is the subject of this lawsuit was installed to the present, including, but not limited to
modification dates, software/hardware titles and version numbers, names of persons performing
modifications, location of any backup of the data on the computer performed prior to
modification, and disposition of replaced software and hardware.
RESPONSE:
REQUEST NO. 17: Produce any and all software installed or used on the computers
used by maintenance during the period from when the door that is the subject of this lawsuit was
installed to the present.
RESPONSE:
REQUEST NO. 18: Produce any and all voice messaging records including but not
limited to caller message recordings, digital voice recordings, interactive voice response unit
(IVR/VRV) recordings, unified messaging files, and computer-based voice mail files to or from
maintenance during the period from when the door that is the subject of this lawsuit was installed
to the present.
RESPONSE:
REQUEST NO. 19: Produce all phone use records for maintenance including but not
limited to logs of incoming and outgoing calls, invoices and contact management records,
manually or automatically created or generated during the period from when the door that is the
subject of this lawsuit was installed to the present.
RESPONSE:
REQUEST NO. 20: Produce any and all manual and automatic records of equipment
use, including but not limited to fax, access, audit, security, email, printing, error and
transmission records regarding maintenance during the period from when the door that is the
subject of this lawsuit was installed to the present.
RESPONSE:

Plaintiffs Supplemental Discovery Requests- 7

47

REQUEST NO. 21: Produce any and all portable devices used by maintenance and not
backed up or archived, including but not limited to handheld devices, set-top boxes, notebook
devices, CE devices, digital recorders, digital camera and external storage devices during the
period from when the door that is the subject of this lawsuit was installed to the present.
RESPONSE:
REQUEST NO. 22: Produce copies of all maintenance manuals, policies and other
guidelines for employee access and use of Internet resources for maintenance issues during the
period from when the door that is the subject of this lawsuit was installed to the present.
RESPONSE:

DATED on this ______ day of May, 2009.

DONALD R. LITKE, Plaintiff

By:___________________________
John P. Inserra, #15084
INSERRA & KELLEY
6790 Grover Street, Suite 200
Omaha, Nebraska 68106-3612
(402) 391-4000
(402) 391-4039 (Fax)
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a true and correct copy of the above and foregoing
document by regular, first class United States mail, postage prepaid this ____ day of May, 2009 on the
following:
David L. Welch
PANSING, HOGAN, ERNST & BACHMAN, LLP
10250 Regency Circle, #300
Omaha, NE 68114
Mr. John W. Iliff
Gross & Welch
1500 Omaha Tower
2120 S. 72nd Street
Omaha, NE 68124-2342

Plaintiffs Supplemental Discovery Requests- 8

48

SAMPLE OF DISCOVERY RESPONSES

SUMMATION

49

IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA

KEVIN WERTS and PEGGY WERTS, as )
Natural Parents, Guardians, and Next Best )
Friends of BLAKE WERTS, a minor child, )
)
Plaintiffs,
)
)
v.
)
)
DR. BRUCE E. TAYLOR, and SAINT
)
ELIZABETHS REGIONAL MEDICAL
)
CENTER, d/b/a SAINT ELIZABETHS
)
)
COMMUNITY HEALTH CENTER,
)
Defendants.
)

CASE NO: CI 06-2866

SAMPLE OF
INITIAL DISCOVERY SUMMARY
ANSWERS OF DR. TAYLOR

Interrogatories:
Key:
OB Overly Broad
I Irrellevant
NCLDE Not calculated to lead to discovery of admissible evidence
P Privileged
1
2
3
4

Persons Answering
Subject of Investigation
Liability Insurance
Liability Insurance

Consults with other med

providers RE: Plfs

Bruce E. Taylor, MD
Objection OB/I/NCLDE/P
Yes
COPIC Ins Co Limits $200K/$600K;
qualified by Hosp. Med. Liab. Act0
None outside of practice

Requests for Production

1
2

CV
Records Relating to I#2

Attached
Objection OB/I/NCLDE/P

50

SAMPLE OF DISCOVERY COMPLIANCE LETTER

PRIOR TO MOTION TO COMPEL

51

Sample Compliance with Meet and Confer Requirement

Month/Day/Year
Name
Address
RE: _________________
Dear ________________:
The purpose of this letter is to request that you tender a further response to [here set forth interrogatory number, set
number, etc.].
As you know, interrogatory number [here set forth interrogatory number, set number, etc.] inquired whether: [here
specify text in interrogatory].
Your response to said interrogatory states that: [here specify the text of response].
[Plaintiff or defendant] considers this response to be insufficient because [here set forth why the answer is incomplete
or evasive, the objection is legally invalid or the claim of privilege is not meritorious].
As you know, under [here specify statute or rule of court] the parties are required to meet and confer in an effort to
achieve an informal resolution of discovery disputes prior to requiring judicial intervention through a motion to compel
further response. Please let me know if you disagree with the position set forth in this letter and/or whether we will be
able to achieve an informal resolution of this matter. I estimate the probable cost of a motion to compel to be
$_____________, including hours to prepare the motion and hours to attend the hearing on the motion.

Very truly yours,

Attorney name

52

CHECKLIST FOR PREPARING A

NOTICE OF DEPOSITION

53

DEPOSITION INFORMATION
_______ John P. Inserra #15084
_______ Craig L. Kelley #18341

Initial Request _______

Reschedule ______

Docket _______ by ______

______ Prepare NOD

______ Video

______ Teleconference

______ Send Letter Client Regarding NOD

______ Prepare AMENDED NOD

_______ Send Pointers on How to Act

Contact: ____________________________________Phone:__________________________________
Case Name: _________________________________________________________________________
DOA: __________ or Docket:_________ Page:________ Case #: __________

Deposition of: ____________________________________________________________who is a

____ Physician

_____ Expert

____ Fact Witness

____ Plaintiff/Client

____ Defendant

Deposition Location:____________________________________________________________________

Time:___________

Prep Time:________
(Client Only)

Deposition Requested by: _____ I&K

Date:_______________________ /_________________
(mm-dd-yy)
(day of week)

_____ Opposing Counsel ___________________________

___________________________
___________________________
___________________________

Send Notice to:

______ Thibault Suhr & Thibault (Phone: 331-2500 Fax: 331-1198)
6818 Grover, Suite 107 - Omaha, NE 68106 email: tst@courtreporteromaha.com
_____ Think Video - Mr. John F. MacKnight (Phone: 597-6300 Fax: 592-0349)
7914 W Dodge Rd, Suite 436 - Omaha, NE 68114 email: thinkvideo@aol.com
_____

JS Wurm & Associates Sue (Phone: 800-551-8382 Fax: 402-475-9876)

233 So. 13th Street, #801 - Lincoln, NE 68508 email: sue@jswurm.com

_____

Latimer Reporting (Toll Free: 877-567-5669 Phone: 402-476-1153 Fax: 402-476-3853)

528 South 13th Street, Suite 1 - Lincoln, NE 68508 email: latimerrep@aol.com

_____ Other: __________________________________________________________________

If questions, contact: _____ Attorney _____ RSM _____ CK _____ Other

54

SAMPLE MOTION FOR APPOINTMENT OF

INTERPRETTER

55

IN THE DISTRICT COURT OF DOUGLAS COUNTY

[Plaintiff]
Plaintiff,
v.
[Defendant]
Defendant.

)
DOC. ____ NO. _____
)
)
) MOTION FOR APPOINTMENT
)
OF INTERPRETER AND
) PAYMENT OF INTERPRETERS
) EXPENSE OUT OF THE SUPREME
)
COURT GENERAL FUND

COMES NOW, the Defendant/Plaintiff [________________], and respectfully moves

this Court for an Order, pursuant to Neb. Rev. Stat. 25-2403 and 25-2406, and in accordance
with the Nebraska Supreme Court Rules Relating to Court Interpreters, appointing a Spanishspeaking interpreter to assist in preparation for trial and at trial in the captioned matter, and
further moves the Court for payment of the associated interpreter fees in accordance with the
Nebraska Supreme Court fee schedule out of the General Fund as established by the Nebraska
Supreme Court for such purposes.
In support of this Motion, Defendant/Plaintiff [_________________], states that he/she is
unable to effectively communicate the English language for preparation and trial of her case, and
that such appointment and payment of translation fees would be in the interest of justice.
Defendant/Plaintiff has already contacted [_______________] an interpreter fluent in both the
English and Spanish language, and requested that [_____________] provide interpreting services
in this case, and [_____________] has agreed to this request.
WHEREFORE, Defendant/Plaintiff, [_________________] prays for an Order
appointing a Spanish-speaking interpreter to assist in preparation for trial and at trial in the
captioned matter, and for payment of translation fees out of the General Fund as established by
the Nebraska Supreme Court for such purpose, and for such other and further relief the Court
deems appropriate.
DATED this ______ day of ____________, 200____.
_______________, [Defendant/Plaintiff]

56

By:

_________________________________
___________________, # ________
INSERRA & KELLEY
6790 Grover Street Suite 200
Omaha, NE 68106-3612
(402) 391-4000
(402) 391-4039 Fax
Attorneys for [Plaintiff/Defendant]

NOTICE OF HEARING
YOU ARE HEREBY NOTIFIED that the above matter will come for hearing on the
____ day of ____________ 200_____, before the Honorable __________________________,
Douglas County Courthouse, Courtroom No. ______. Omaha, NE at the hour of _____a./p.m., or
as soon thereafter as the same may be heard.

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the foregoing was served upon the
following by mailing said copy by regular U.S. Mail, portage prepaid on this the ____ day of
________________ 200____ to the following counsel of record:

_______________________________

57

SAMPLE CORPORATE NOTICE OF

DEPOSITION RULE 30(b)(6)

58

IN THE DISTRICT COURT OF PLATTE COUNTY, NEBRASKA

ANNA S. ZIMMERER, and BECTON

DICKINSON, a New Jersey corporation,
as subrogee, and Kemper Employers
Insurance Company, as subrogee,

)
CASE NO. CI 02-539
)
)
)
)
Plaintiffs,
)
) PLAINTIFFS NOTICE OF CORPORATE
vs.
) DEPOSITION OF DEFENDANT METRO
)
MACHINE & ENGINEERING
METRO MACHINE & ENGINEERING )
CORPORATION PURSUANT TO
CORPORATION, a Minnesota
)
NEBRASKA RULES OF DISCOVERY
corporation,
)
30(b)(5), 30(b)(6) and 34
)
Defendant,
)

TO:

METRO MACHINE & ENGINEERING CORPORATION, a Minnesota

Corporation, and Brian Nolan, Its Attorneys
PLEASE TAKE NOTICE, that pursuant to Nebraska Rules of Discovery 30(b)(5) and

30(b)(6), the stenographic deposition of METRO MACHINE & ENGINEERING

CORPORATION, will be taken before a qualified Court Reporter at 8001 Wallace Road, Eden
Prairie, MN 55344 on the ______ day of ____________, 2005 at _____:____ __.m., and
thereafter by adjournment until the same shall be completed.
Pursuant to Nebraska Rule of Discovery 30(b)(6), METRO MACHINE &
ENGINEERING CORPORATION, is required to designate and fully prepare one or more
officers, directors, managing agents, or other persons with the most knowledge concerning the
following designated matters; or other persons who consent to testify on its behalf, and whom
Defendant will fully prepare to testify regarding the following designated matters and as to such
information that is known or reasonably available to the organization:
1.

The existence of the documents requested below pursuant to Nebraska

Rule of Discovery 34;

2.

The electronic creation, duplication and/or storage of the documents

requested below pursuant to Nebraska Rule of Discovery 34;

59

3.

Any and all document retention/destruction policies that would relate to

any of the documents requested below pursuant to Nebraska Rule of
Discovery 34;

4.

The location of the documents requested below pursuant to Nebraska Rule

of Discovery 34;

5.

The organization, indexing and/or filing of the documents requested below

pursuant to Nebraska Rule of Discovery 34;

6.

The method of search for the documents requested below pursuant to

Nebraska Rule of Discovery 34;

7.

The completeness of the documents produced pursuant to Nebraska Rule

of Discovery 34;

8.

The authenticity of the documents produced pursuant to Nebraska Rule of

Discovery 34;

9.

The person with the most knowledge or information regarding the details
of the Purchase Order and accompanying Equipment & Tool
Specifications Agreement;

10.

The person with the most knowledge or information as to the debugging

process as set forth in Defendants Answer to Interrogatory No. 7;

11.

The person with the most knowledge or information of the joint

agreement regarding the guarding of the machine as set forth in
Defendants Answer to Interrogatory No. 9;

12.

The person with the most knowledge or information regarding claims

against Defendant for injuries related to the Solo Shot machine or any
other similar machine as set forth in Defendants Answer to Interrogatory
No. 19;

13.

The person with the most knowledge or information as to the condition of

the Solo Shot machine when it was placed in use at Becton Dickinson;

14.

The person with the most knowledge or information as to other equipment

purchased by Becton Dickinson from Defendant;

60

15.

The person with the most knowledge or information as to the installation

and training of the use of the Solo Shot machine at the time it was
installed at Becton Dickinson;

16.

The person with the most knowledge or information as to the inspections

made of the Solo Shot both prior and subsequent to installation and
debugging; and

17.

The person with the most knowledge or information as to direct parties or

any third parties who may have knowledge or information about the Solo
Shot machines engineering, production, manufacture, installation,
maintenance, or use issues.

Pursuant to Nebraska Rules of Discovery 30(b)(5) and 34, plaintiff requests that
METRO MACHINE & ENGINEERING CORPORATION produce the following
documents and tangible things, as well as permit Plaintiffs counsel to inspect and copy each of
the following documents and tangible items in the possession, custody, or control of METRO
MACHINE & ENGINEERING CORPORATION, its attorneys or other representatives or
agents:
SCHEDULE OF DOCUMENTS:
1.

Any documents relating to the debugging process as set forth in Defendants

Answer to Interrogatory No. 7.

2.

Any documents relating to the joint agreement regarding the guarding of the
machine as set forth in Defendants Answer to Interrogatory No. 9.

3.

Andy documents relating to any claims against Metro Machine for injuries related to
the Solo Shot machine or any other similar machine as set forth in Defendants
Answer to Interrogatory No. 19.

61

Dated: October 30, 2010.

ANNA S. ZIMMERER, Plaintiff,

__________________________________
Jeffrey F. Putnam, #21527
INSERRA & KELLEY
6790 Grover Street, Suite 200
Omaha, Nebraska 68106-3612
(402) 391-4000
(402) 391-4039 (Fax)
Attorneys for Plaintiff

CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing document was mailed by United States
mail, postage prepaid, to the following on the _____ day of February, 2005.
Brian D. Nolan
NOLAN, OLSON, HANSEN, FIEBER
& LAUGHTENBAUGH, L.L.P.
300 South 19th Street, Suite 302
Omaha, NE 68102
Chad P. Richter
Paul E. Larson
BERENS & TATE, P.C.
10050 Regency Circle, #400
Omaha, NE 68114-3721
___________________________________

62

SAMPLE FED.R.CIV.P. 30(b)(6) DEPOSITION NOTICE

UNITED STATES DISTRICT COURT

DISTRICT OF [Jurisdiction]
Court File No.:
,
Plaintiff,
v.

NOTICE OF TAKING DEPOSITION

PURSUANT TO FED.R CIV P. 30(b)(6)
,
Defendant.

PLEASE TAKE NOTICE that [Plaintiff/Defendant/Corporation] take(s) the deposition, before a qualified notary public by oral
examination, of [Plaintiff/Defendant/Corporation] on [date/time], commencing at [location]. The deposition will continue until
adjournment.
Pursuant to Federal Rule of Civil Procedure 30(b)(6), [Plaintiff/Defendant] corporate designee(s) shall be prepared to testify
regarding the following subjects, all with respect to [Plaintiff's/Defendants] information technology systems:
1)

Number, types, and locations of computers currently in use and no longer in use;

2)

Past and present operating system and application software, including dates of use;

3)

Name and version of network operating system currently in use and no longer in use but relevant to the subject
matter of the action;

4)

File-naming and location-saving conventions;

5)

Disk or tape labeling conventions;

6)

Backup and archival disk or tape inventories or schedules;

7)

Most likely locations of electronic records relevant to the subject matter of the action;

8)

Backup rotation schedules and archiving procedures, including any backup programs in use at any relevant
time;

9)

Electronic records management policies and procedures;

10)

Corporate policies regarding employee use of company computers and data;

Sample Forms and Pleadings

2006 Kroll Ontrack, Inc.

visit www.krollontrack.com
for the latest version

Page 1 of 2
Last Revised 1/1/06

63

11)

Identities of all current and former personnel who have or had access to network administration, backup,
archiving, or other system operations during any relevant time period.

[Date]
BY:
[Counsel/law firm name and address]
Attorneys for [Plaintiff/Defendant]

Sample Forms and Pleadings

2006 Kroll Ontrack, Inc.

visit www.krollontrack.com
for the latest version

Page 2 of 2
Last Revised 1/1/06

64

SAMPLE Fact Witness Notice of Deposition

65

IN THE NEBRASKA WORKERS= COMPENSATION COURT

REBECCA A. HENKE
SSN: 391-72-9362

)
)
)
Plaintiff,
)
)
v.
)
PENSKE TRUCK LEASING CO., L.P., )
c/o CSC-Lawyers Incorporating Service )
Company, Registered Agent
)
)
Defendant.
)

DOC. 203

PAGE 1387

PLAINTIFFS NOTICE
TO TAKE DEPOSITION
OF JOHN PAYNE

Take notice that the said plaintiff will take the deposition upon oral examination of
JOHN PAYNE, at the offices of Penske Truck Leasing Co., LP, G5 Corporate
Woods Plaza, Bridgeton, Missouri, on Tuesday, March 30, 2004 at 11:00 oclock a.m.,
and thereafter from day to day as the taking of said deposition may be adjourned.
Deponent is directed to bring all documents and correspondence relating to the above
Plaintiff to the deposition. Said deposition is to be used in the above-entitled action. You
are hereby notified to appear and take part in said deposition. Said deposition to be
recorded and transcribed by a certified court reporter, which will be provided by the
plaintiff.
DATED on this

day of March 2004.

REBECCA A. HENKE, Plaintiff

By: ____________________________
Jeffrey F. Putnam, #21527
INSERRA & KELLEY
6790 Grover Street, Suite 200
Omaha, NE 68106-3612
(402) 391-4000/ 391-4039 - Fax
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
As one of the attorneys for the Plaintiff herein, I do hereby certify that I caused
the above Notice to Take Deposition to be served upon the Defendant herein by mailing
same as First Class United States Mail, with postage prepaid, to its attorney of record,
John W. Iliff, Gross & Welch, P.C., 1500 Omaha Tower, 2120 S. 72nd Street, Omaha,
NE. 68124-2342, on this the
day of March 2004.
____________________________________

66

SAMPLE Video Notice of Deposition

67

IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA

RODNEY D. KREGER
Plaintiff,
vs.
MANUEL C. VALVERDE,

DEFENDANT

)
)
)
)
)
)
)
)
)
)

CASE NO. C103-2204

NOTICE TO TAKE
VIDEO DEPOSITION OF
R. MICHAEL GROSS, M.D.

Take notice that the said plaintiff will take the video deposition upon oral examination, of
DR. MICHAEL GROSS, at 7710 Mercy Road Suite 224, Omaha, Nebraska on Nebraska
Spine Center, 11819 Miracle Hills Drive, Suite 102, Omaha, Nebraska, on Wednesday, May 5,
2004 at 9:00 oclock a.m., and thereafter from day to day as the taking of said deposition may
be adjourned. Deponent is directed to bring all medical records, documents and correspondence
relating to the above Plaintiff to the deposition. Said deposition is to be used in the aboveentitled action. You are hereby notified to appear and take part in said deposition. Said
deposition to be recorded and transcribed by Thibault Suhr & Thibault Court Reporters.
DATED on this

day of February 2004.

RODNEY KREGER, Plaintiff

By:
John P. Inserra, #15084
INSERRA & KELLEY
6790 Grover Street, Suite 200
Omaha, Nebraska 68106-3612
(402) 391-4000/391-4039 - Fax
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
As one of the attorneys for the Plaintiff herein, I do hereby certify that I caused the above
Notice to Take Deposition to be served upon the Defendant herein by mailing same as First
Class United States Mail, with postage prepaid, to its attorney of record, Baylor, Evnen, Curtiss,
Grimit & Witt, L.L.P., Wells Fargo Center, 1248 "O" Street, Suite 600, Lincoln, NE 68508, on
the
day of February 2004.
_________________________________________
68

SAMPLE Deposition by Written Questions

69

IN THE DISTRICT COURT OF SARPY COUNTY, NEBRASKA

KATHERINE RIEPLE,
Plaintiff,
v.

DEBORAH WANGBERG,
Defendant.

TO:

)
DOC. CI06
NO. 622
)
)
)
NOTICE OF INTENTION TO TAKE
) DEPOSITION BY WRITTEN QUESTIONS
)
OF DR. BERNARD KRATOCHVIL
)
)
)
)

Defendant DEBORAH WANGBERG and Douglas L. Phillips, KLASS LAW FIRM,

LLP, Mayfair Center, Upper Level, 4280 Sergeant Road, Suite 290, Sioux City, IA
51106, attorney of record
Please take notice a deposition of written questions will be taken of Dr. Bernard

Kratochvil, M.D., Drs. Gross, Iwersen, Kratochvil & Klein, P.C., Orthopaedic Surgery, 7710
Mercy Road, #224, Omaha, NE 68124 on the _____ day of _______________ at __:___ __.m.
and continuing thereafter until complete. Said deposition upon written questions will proceed
before a Certified Court Reporter at the offices of Dr. Bernard Kratochvil, M.D., Drs. Gross,
Iwersen, Kratochvil & Klein, P.C., Orthopaedic Surgery, 7710 Mercy Road, #224, Omaha, NE
68124, pursuant to Rule 31 of the Nebraska Civil Discovery Rules.
Dated:

March _______, 2007.

KATHERINE RIEPLE, Plaintiff,

By:

___________________________
John P. Inserra, #15084
INSERRA & KELLEY
6790 Grover Street, Suite 200
Omaha, NE 68106-3612
(402) 391-4000
(402) 391-4039 (Fax)
jpinserra@inserra.com

1
70

Certificate of Service
The undersigned hereby certifies that he served a true and correct copy of the above and
foregoing document by regular, first class United States mail, postage prepaid this ____ day of
March 2007 on the following:
Douglas L. Phillips
KLASS LAW FIRM, LLP
Mayfair Center, Upper Level
4280 Sergeant Road, Suite 290
Sioux City, IA 51106
______________________________

71

IN THE DISTRICT COURT OF SARPY COUNTY, NEBRASKA

KATHERINE RIEPLE,
Plaintiff,
v.

DEBORAH WANGBERG,
Defendant.

TO:

)
DOC. CI06
NO. 622
)
)
)
) DEPOSITION BY WRITTEN QUESTIONS
)
OF DR. BERNARD KRATOCHVIL
)
)
)
)

BERNARD L. KRATOCHVIL, M.D., Drs. Gross, Iwersen, Kratochvil & Klein,

P.C., Orthopaedic Surgery, 7710 Mercy Road, #224, Omaha, NE 68124

QUESTIONS PERTAINING TO:

KATHERINE RIEPLE; IME OF JANUARY 23, 2007
DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS
QUESTION NO. 1: Identify yourself fully, including your full name, business address,
and occupation including job title and the business with which you are employed.
ANSWER:

QUESTION NO. 2: With regard to the pending lawsuit, please state who hired you to
perform medical services, what you have been hired to do, and what your compensation is to be.
ANSWER:

QUESTION NO. 3: Please state what percentage of your medical practice is performed
as a medical-legal expert performing Independent Medical Exams and/or providing opinions to
requesting lawyers, claims representatives, or other legal representatives.
ANSWER:

3
72

QUESTION NO. 4: Please state what percentage of your answer to Question #3 above
is performed for all defendants as opposed to what percentage is performed for all plaintiffs.
ANSWER:

QUESTION NO. 5:

Please state what percentage of your income is earned from

expert medical work.

ANSWER:

QUESTION NO. 6: Please state the average number of Independent Medical

Examinations that you perform in one year.
ANSWER:

QUESTION NO. 7: Please state specifically each case in which you have actually
testified, whether by deposition or at trial within the past three years.
ANSWER:

QUESTION NO. 8:

Please state whether the report dated November 13, 2006 attached

as Exhibit A to these questions is a true and accurate copy of your assessment of the plaintiff
as a result of an Independent Medical Examination you conducted on or about November 13,
2006?
ANSWER:

QUESTION NO. 9:

Please state the number of times you have been employed by the

law firm of Fraser, Stryker, Meusey, Olson, Boyer & Bloch, PC during the past three (3) years in
an expert capacity.
ANSWER:

4
73

_______________________________________
BERNARD L. KRATOCHVIL, M.D.

Before me, the undersigned authority, on this day personally appeared BERNARD L.
KRATOCHVIL, M.D., known to me to be the person whose name is subscribed to the foregoing
instrument in the capacity therein stated, who being first duly sworn, stated upon his oath that the
answers to the foregoing questions are true and correct.

__________________________________________
NOTARY PUBLIC

My Commission Expires:_____________________

74

SAMPLE Deposition Summation

75

IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA

KEVIN WERTS and PEGGY WERTS, as )
Natural Parents, Guardians, and Next Best )
Friends of BLAKE WERTS, a minor child, )
)
Plaintiffs,
)
)
v.
)
)
DR. BRUCE E. TAYLOR, and SAINT
)
ELIZABETHS REGIONAL MEDICAL
)
CENTER, d/b/a SAINT ELIZABETHS
)
)
COMMUNITY HEALTH CENTER,
)
Defendants.
)

CASE NO: CI 06-2866

DEPOSITION SUMMARY OF
DR. BRUCE E. TAYLOR, M.D.

Education and Qualifications:

4:12-6:25

Dr. Taylors education, qualifications, and experience up to the time of delivery

of Blake Werts.

8:17-9:1

Board Certified in OB/GYN in 1981 lifetime certification.

Standard Practice of Covering Other Drs. Patients:

7:1-17

Dr. Lucas (partner of Dr. Taylor) saw Blake Werts 1x; general practice was to
deliver own patients but had patients meet at least one other person in case of
emergency (doctor out of town, etc.)

7:18-25

Shared responsibilities for covering hospital/deliveries and assisted each other in

surgeries.

8:1-13

Covered Joe Rogers and Dr. Lucas also covered Taylors patience if he was out of
town

8:14-16

Doesnt know how many active patients he had in 1996

Hospital Staff and Privileges:

9:2-15

1996 on staff at Bryan and St. Es; courtesy staff at LGH; allows him to admit
patients and perform surgeries

9:16-10:2

Privileges at St. Es in 1996 attending OB/GYN surgeries, c-sections,

deliveries, high-risk ob

76

10:3-7

1996 - 50% deliveries @ St. Es; 50% at Bryan

10:8 -13

Deliveries average 12-14 patients per month, do not know how many in 1996

Protocol of OB through Delivery:

10:14-11:8

Usual protocol of OB through delivery see PA for 30 minutes for history and
lab; next 2-3 weeks to a month he sees them for physical exam and info, blood
work, develop pregnancy plan; back monthly until 32 weeks; then see every 2
weeks until 36 weeks; then weekly until delivery

34:20-35:12

1996 normal ultrasound number same as today 1 to 2; based on patients

problems, or if twins or if patient diabetic; normal OB patients get ultrasound at
22-24 weeks; Now due an early ultrasound to document dates, especially for
people who may have repeat C-Section. Not normal to do ultrasounds towards
end of pregnancy except if question of fetal size.

Peggy History and Treatment

11:9-12:1

Peggy Werts was a patient; reviewed her office and hospital records prior to depo
in his office; records given by counsel

12:1-19

First saw Peggy on 3/6/06, but she was prior patient; saw for OB history a couple
visits before they moved to CA; seen after moved back for routine exam.

12:20-23

Never reviewed records from first delivery in California

12:24-13:3

PA took history initially

13:4-24

Peggys History: prior C-section for fetal distress; infant hospitalized for heart
problems; per Peggy no reason not to have VBAC, low cervical transverse uterine
incision.

13:25-14:19

No verification of incision. Cannot be done by exam or ultrasound.

21:3-21:11

Only way to determine the incision type is by operating record; patient asked to
bring in and didnt.

29:17-25

Peggy had prior C-Section and no vaginal deliveries; no significance to him in

decision for VBAC.

30:1-21

Fact that original C-section was done because of fetal distress put Peggy at higher
ability to have VBAC because C-section was not done because of disproportion.
If breach, higher risk for cord prolapsed and head entrapment if delivered
2

77

vaginally. Blake was not breach.

35:13-36:5

Reviewed ultrasound reports. Significance is 5/16/96 ultrasound at 22 weeks

showed infant growing symmetrically with due date of 9/18/96; ultrasound of
9/5/96 showed still symmetrical growth, fluid level normal, placenta normal;
due date unchanged meaning infant not growing macrosomic a little over 7
lbs.

36:6-37:1

Peggy admitted to St. Es on 9/16/96; not in labor; plan to induce before infant
grew larger; decision to induce made around 9/11; notation within hospital chart
to go ahead and start a Pitocin induction that was dated that date; Pitocin used to
cause contractions.

37:2-7

Felt needed to induce labor as she was closer to her due date and if you start in the
morning can get done before 2AM

37:22-38:14

Pitocin not started on September 11th. Note dated 9/11/96 state admit on 9/16 for
VBAC induction. Start Pitocin on admission.

38:24-39:7

Prior to 9/16/96, Peggy had not gone into labor or they would not have waited to
induce. Induction had nothing to do with size of baby.

39:21-41:19

Peggy checked into hospital at 7:05 a.m. and was administered Pitocin. He took a
look at her at noon according to the hospital record. At noon Pitocin was started
and she was having very mild contractions. Indication in nurses notes he was
there at 10AM and elected fetal monitoring strip and spoke with the patient.

42:11-18

Spoke with patient. Nothing really happening at that point.

45:2-25

At 10:00 AM, Peggy basically having no contractions. At 12:00 PM, condition

not much different. Cervix not dilated and head was presenting still a little
higher, which is normal sometimes. Nurses notes indicate an SVE sterile
vaginal exam. Done with a glove on hand and you put it in the vagina and check
for cervical dilatation.

46:1-47:1

Told them to go ahead and increase the Pitocin and wrote a note in the progress
sheet 9/16, noon, 30-year-old MWF, which stands for married white female,
gravid 2, para 1, with an EDC of 9/23/96, admitted for a trial of induction.
History of previous C-section. Chest clear, heart regular rate and rhythm without
murmurs. Cervix fingertip 20 percent effaced, fetal heart tones okay. Impression:
Term pregnancy, two, VBAC, pan trial of pit, type and screen. With VBACs
always get blood available just in case you need one, routine protocol for Taylor
in case of C-section or bleeding episode.

78

47:2-48:23;
49:21-50:13

Back to hospital when he called in and she was having fetal distress shortly before
she delivered. Called in at 8:04 according to hospital record. Believes the
hospital was trying to call him at the same time assumes thats what they would
be doing with the problems she started to have. Fortuitous that he happened to
call first. Doesnt know for sure. Has not asked whether anyone attempted to call
him. At 8:04, he was at 11th & South St, Zestos. After call, proceeded
expeditiously to St. Es. Told at time of call that the fetal heart tones were down
and she was complaining of abdominal pain and uterus was firm indicating
infant was having some distress, the uterus being firm could also go along with an
abruption where the placenta can sometimes separate from the uterus. Ordered
some Tributalene to stop contractions and asked if there were any other
physicians within the hospital to go ahead and start things sooner. There was
another C-section going on at the time from his records and no one else available
who could respond any faster. Indicated hospital should prepare Peggy for a CSection. He called labor and delivery and doesnt recall which nurse she talked
to.

48:24-49:3

When arrived at hospital, went up to the labor and delivery and reviewed the fetal
monitor and proceeded with C-section.

49:8-20

Took a look at fetal monitoring strips. According to his note fetal tones down to
around 70 with no increase indicating infant not tolerating current condition.

50:14-51:4

From hospital chart, it appears Peggy Cline was the nurse who made notations on
the chart. Other nurses taking care of Peggy were J. Ewoldson and Sandy Bleich.
Brenda Goodbar was circulating nurse. Worked with these nurses on a regular
basis.

51:17-52:16

Between noon and time he called hospital, Peggy feeling very mild contractions,
not changing anything cervix wise. Needs contractions to change cervix. Hadnt
progressed much at that point. At 4:30, according to nurse notes, called in and
increased Pitocin as still having mild contractions.

52:20-53:15

Pitocin increase every 15-30 minutes had been going on all day. Hard to say
what shows in flow record on whether it helped because no notation between
16:30 and 19:15, but on OB flow record Peggy still having mild contractions
until about 7 oclock. Hard to read copy. In nurses notes, says at 7:00, appears
to say moderate assumes inferring to contractions.

53:16-24

How long proceed with Pitocin LAMSON OBJECTION VAGUE AND

INDEFINITE -Generally proceed with Pitocin by inducing during the day and
into evening, stop, rest them, start again the next day depends on need for
delivery. Guess is if she had not had episode at 8 oclock, probably would have
rested overnight and started again the next morning unless she was tired of it.
4

79

54:4-12

Risks of continuing Pitocin was water intoxication, which is why Taylor ordered a
double strength Pitocin; same amount of Pitocin or a little more and a lesser
amount of fluid so shes not getting as much fluid value.

54:13-56:3

Notation in OB flow record at 19:15 says variable deceleration decreased 90 to

120 times 20-40 seconds meaning heart rate when down to 90-120 for a short
period of time. Variable deceleration is one that changes with contractions,
usually associated with the contraction. Can be cord changes or cord pressure.
Can be caused by position of infant at that moment. If variable, its something
they note to see if you can change it by position changes, oxygen if necessary.
Sometimes they will stop. LAMSON OBJECTION TO WHETHER
THERE IS SOMETHING SIGNIFICANT ABOUT MAKING THE NOTE
AS TO FORM AND FOUNDATION Taylor did not make the note. Thinks
just documenting what the fetal heart tones are doing. Cant read next line.

56:4-24

Next Notation is 19:35; significance is they moved her from bed to chair, so
assumes fetal heart tones resolved as to variabilities or probably would have been
a notation. Normally do not move someone who is having heart tone changes to a
chair if they are still occurring. Doesnt have the strip and we dont either. Other
reasons for the move to try a different position, tired of lying in bed. Certainly
dont normally do that for fetal distress.

56:25-57:16

Mentioned change in position with variable deceleration not same change

normally would change mothers position from right side to left side to back to try
to find a position more normal for infant. If variable deceleration for short
duration, probably not necessary to call dr. to discuss if it resolved on its one. If
continuous, anticipate a phone call.

57:17-58:15

OB Flow record page 15 time 19:40, says focus, has FHTs fetal heart tones;
note indicates patient calls out with pain. Taylor assumes it says patient calls out
with complaint of pain, decreased Pitocin and individuals name. LAMSON
OBJECTION TO ASKING IF INDICATES PROBLEM WITH FETAL
MONITOR READINGS AS TO FORM AND LACK OF FOUNDATION
Taylor doesnt know if they are reading off the fetal monitor because it is not
noted at that point until 19:54 when its difficult to assess and had to get her back
to bed at 19:54; assume they were trying to assess fetal heart tones at that point.

58:16-60:1

Number of notes from 19:54 8:04, 20:04; all have deceleration

CHRISTENSEN OBJECTION AS TO ASKING WHAT THAT MEANS AS
FORM OF QUESTION SAYS NOT SURE THAT PROPERLY STATES
THE RECORD Taylor says found fetal heart tones to be in 70 area and
increased the IV and gave mother oxygen and tried changing sides; also did scalp
stimulation with little response; put her in Trendelenburg positioning all
changes to the patients positioning to try to alleviate the fetal heart tone change;
appears from notes there is some fetal distress not sure how to quantify how
5

80

much. Concern of her pain complaint would be whether she may have had a
placental separation or as what turned out a dehiscence of previous incision.
Blood in the abdomen can cause pain too.
60:2 -61:2

When did C-section according to OP note, opened the abdomen small amount
of blood hole within the uterus where infants head was starting to come out;
infant delivered, headed off to pediatrician who he did a very good resuscitation
and then repaired defect within the uterus. Defect appeared to be at area of the
scar from prior C-section. Blake was not breathing. He was immediately
intubated and when youre intubated you dont breathe, so cant answer how long
he wasnt breathing.

60:3-13

LAMSON AND CHRISTENSEN OBJECTIONS TO FORM OF

QUESTION; VAGUE AND INDEFINITE (John asked if there was anything
prior to the C-Section that would tell how long not breathing prior to C-Section)
Infants dont normally breathe on the inside so no breathing going on until
exposed to oxygen and air.

61:14-25

LAMSON AND CHRISTENSEN OBJECTIONS FOUNDATION (John

asked opinion re: what happened in utero to Blake re: rupture); Taylor not sure
what happened to Blake in utero at time of rupture except he was under some
stress.

62:1-12

Delivery at 8:25. Never examined baby not a pediatrician; probably went in to

see him but doesnt recall. It is usual for him to do when infant is in ICU.

62:13-63:10

Followed-up with Peggy; last note in office chart baby seems to be doing better
is rolling over and acting more normally, although gets mad and pulls thumbs
into the inside. Not a neurologist doesnt know significance. Sounded like
baby was doing good for rolling over at 6 weeks. Did not see Peggy or Blake
again, but they sent him a note that says Thank you Dr. Taylor picture of Blake
and brother Bryce.

Guidelines: VBAC and ACOG, as well as Hospital

15:1-22

Guidelines for VBAC: 60-80% success rate in 1996; less side effects from
vaginal birth; complications present on both; in 1996 concern about C-section
rates encouraged to do VBACs, Peggy wanted. National concern ACOG and
news media.

16:2-11

Guidelines for VBACs in 1996 revised since then from ACOG; he is a member

16:13-17:24

ACOG group of certified and affiliated physicians and personnel; guidelines

published in practice management mailed out by ACOG; references made in a
6

81

journal; has access to 1996 guidelines; His atty has them. Also have old ones in
his files.

18:1-19:15

Guidelines are made through practice committee made up of experts in the field;
no knowledge of who formulated as committee changes; Has met some
committee members. Appointed by ACOG to panels. Trusts ACOG. No
knowledge of whether the guidelines are peer reviewed. Guidelines appear in
Williams Textbook of Obstetrics, GOBY obstetrical Textbook; Fetal and
Maternal medicine textbooks.

19:16-24

Functioned under ACOG guidelines or hospital guidelines. Still uses ACOG

guidelines.

19:25-20:14

Doesnt recall guidelines by St. Es other than the OB/GYN rather than family
physician or midwife; does not have bylaws from 1996; hospitals did not
encourage VBAC. Physician-patient relationship makes the decision.

22:20-23:1

30 minute limitation for emergency C-Section was from ACOG. Doesnt know if
it was shorter prior to 1996.

VBAC Determining Factors:

20:15-21:2;
21:12-22:19;
23:5-13
Determining factors are patients desire, whether C-section was classic C-section
or low cervical transverse; whether she was told she could not have a VBAC;
classical C-section goes up and down and prohibit a VBAC; fetal weight; number
of C-sections; any previous vaginal deliveries; having a nonrepeatable C-section,
i.e. breach or fetal distress have a higher chance of normal vaginal delivery; if
cephalopelvic disproportion less of a chance; size of woman and pelvis; and
ability of hospital to do C-Section within 30 minutes of decision; hospital staffed
with anesthesia and surgery personnel and ability to monitor infant with
appropriate nursing personnel.
Conversations with Peggy RE: VBAC and Risks
23:14-24:9

Spoke with Peggy about VBAC; Only one notation where it says C-sectionVBAC, which indicates patient would like to try vaginal; On 8/28 in treatment
plan noted labor p.c. which is precautions discussed what to do if she went into
labor.

24:10-25:12

No particular form for VBAC until 2000; No recollection of specific conversation

with Peggy re VBAC; routinely discusses risk complications of any surgery or
VBAC with patients. Standard for him; patient requested VBAC. No other
7

82

notations re: conversation.

31:25-33:25

Risks discussed with Peggy hard to remember, but sure that he did; considered
the risks to be less than 1% of uterine rupture; no notes that risk was higher than
normal; normal is less than 1%; LAMSON OBJECTS TO FORM OF
QUESTION AS VAGUE AND INDEFINITE; Taylor believes risk is normal
for a VBAC higher than a non-VBAC.

34:1 -18

Peggy was adamant about vaginal delivery she wanted a trial of labor to deliver
normally; believes this because Most women do. Cant say specifically. No
special planning done for Peggy re: delivery.

37:8-21

Discussion with Peggy about doing induction of labor. Notes would be under
labor precautions; Recollection of game plan of what is usual and customary to
discuss with patients as a routine.

38:17-23

Decided on 9/11 to proceed with induction and made arrangements with hospital.

VBAC Risks
25:13-26:18

Risks less than 1% of uterine rupture; not progressing in labor; 2nd C-section
with a first time VBAC for Peggy is about the same as someone who is having a
first-time delivery; risk of bleeding because of weak spot in uterus; most
significant risk is uterine rupture or placental abruption due to old scar can open
and create placental abnormalities and oxygenation to the infant depending on
where rupture is and tolerability of infant to the assault; variable no way to say
if it will or will not happen. Risk of death to infant or mother; same as any
pregnancy.

28:4-14

Risks of VBAC with macrosomic infant may not fit out; cephalopelvic
disproportion; some still successful at vaginal deliveries; guidelines did not say it
should not be done, depending on size of infant.

Mom/Fetal Weight
26:19-28:3

Ultrasound 2 weeks prior to due date showed a little over 7 lbs. not a
macrosomic infant 2 weeks prior to delivery; Notes in ultrasound LGA large
for gestational age; that was reason for the ultrasound to determine if infant too
large; coded for insurance; macrosomic means infants greater than 4500 grams ;
4000 grams is 8 lbs 8 oz.

28:15 -25

Blake was 8 lbs 4 oz at delivery. 4,000 grams is considered to be in area of

macrosomia, but 72% who are 4,000 4,500 grams still deliver vaginally.

29:1-16

Weight of Mother not an issue in ACOG guidelines in 1996, but some suggestions
8

83

now that an elevated BMI make it less desirable because of fat dystocia more
difficult for mom to get legs apart sufficiently or labia apart sufficiently.
Time Factors RE: C-Section; Hospital Liability Factors
30:22-31:21

ACOG guideline in 1996 was from decision to incision 30 minutes. No

recommendations about physicians being present during labor; no physician
present with Peggy during labor; hospital had anesthesia and staff available for
emergency C-Section; hospital sufficient to monitor the infant.

63:11-18

Dr. Lucas not on call for deliveries on 9/16/96 nobody else otherwise on call,
but thats why he called in and asked if anyone in-house; no one available. Made
that notation in hospital records. Significant from standpoint that no other easier
option to get things done faster than what he did. If infant has fetal distress, try to
do delivery, if necessary.
ON CROSS EXAM BY CHRISTENSEN

65:1-

Based on review of records, believe nurses followed his orders re: administration
of Pitocin.

Pitocin
39:8-20

Pitocin causes uterine contractions, works in the pituitary. One other choice
besides Pitocin Cytotec which is shown today to not be a good choice.

42:19-43:12

Normal course of Pitocin varies with receptibility of patient. No timing standard

depends on the patient and how they respond to the medication. Usually start
out with a low dose and gradually increase until contractions become rhythmic.

43:13-44:1;
54:4-12

Dangers of Pitocin are hyperstimulation/prolonged contraction. Can also cause

ADH effect, antidiuretic effect patient retains water so often decrease amount
of fluids given to patient depending on how much is going on so she doesnt
become water intoxicated.

44:2-45:1

Prolonged contraction lasting more than a minute and a half to two minutes.
Sometimes last 3-4 minutes. Average contractions are usually 60 seconds, maybe
90. Danger of a prolonged contraction: if contraction strong enough, will cut off
the cord supply blood wise to the infant and can cause fetal distress where you
have a decreased fetal heart rate. That why use fetal monitor when using Pitocin.

52:20-22

Pitocin done systematically. Start at low dose and increase every 15-30 minutes
depending on results.

84

53:16-24

How long proceed with Pitocin LAMSON OBJECTION VAGUE AND

INDEFINITE -Generally proceed with Pitocin by inducing during the day and
into evening, stop, rest them, start again the next day depends on need for
delivery.

Fetal Monitoring Strips

41:20-42:10

Fetal monitor assesses fetal heart rate of infant and contractions of patient. Kept
by hospital in the records. St. Es does not have them in the record. No idea what
happened to them.

Nurse Responsibilities
51:5-16

Responsibilities of nurses LAMSON OBJECTS TO FORM AND LACK OF

FOUNDATION to assist patient with their needs, start IV, place the monitor,
check blood pressure, pulse, monitor the fetal monitor, report any changes.

10

85

SAMPLE Scheduling Conference Packet

86

8:10-cv-00306-LES -TDT Doc # 8

Filed: 09/03/10 Page 1 of 7 - Page ID # 15

United States District Court

Example of Scheduling
Conference Packet from Federal
Court

District of Nebraska

Roman L. Hruska U.S. Courthouse TEL: (402) 661-7320

LYLE E. STROM
United States District Judge

Suite 3190
111 South 18th Plaza
FAX: (402) 661-7318
Omaha, Nebraska 68102-1322
----------

September 3, 2010
RE:

8:10cv306,
Jeffrey L. Wilhite v. Union Pacific Railroad Company

Dear Counsel and Persons Appearing Without Counsel:

This case has been assigned to magistrate judge Thomas D. Thalken and the undersigned
District Judge. The undersigned judge will handle all preliminary pretrial matters, dispositive
motions, i.e., motions to dismiss and motions for summary judgment. If the parties consent to trial
before a magistrate judge, all motions will be handled by the magistrate judge.
The Federal Practice Committee in the Spring of 2000 held a conference open to all members
of the Nebraska Federal Bar Association. The purpose of the conference was to obtain suggestions
to aid the court in expediting the progression of civil cases. Counsel recommended early, active
judicial involvement. With the advent of amendments to the Federal Rules of Civil Procedure which
took effect December 1, 2000, the court has implemented a number of these suggestions.
Meet and Confer Obligations
The Federal Rules of Civil Procedure require the parties to meet and confer and provide to
the court a report of their conference. Plaintiff should initiate the scheduling of this conference. If
the parties are agreeable, the conference can occur by telephone.
The court expects the parties to electronically file a detailed report which includes , among
other matters, the following subjects: (1) a statement of the elements of each claim and defense
raised; (2) statement of how each partys disclosure will relate to the claim/defense raised by that
party; (3) whether summary judgment motions may be appropriate, and, if so, what discovery must
first take place; (4) whether the parties consent to disposition by a magistrate judge.
Initial Progression Order and Status Conference
Relying upon the report provided by counsel, the judge will enter an initial progression
order which will set deadlines for initial disclosures and authorize the commencement of discovery.
Approximately ninety days into the case, a status conference will be held. Counsel will be required
to participate, in person or by telephone. The initial progression order will contain a setting of this
status conference. The status conference will be held by the judge.
87

8:10-cv-00306-LES -TDT Doc # 8

Filed: 09/03/10 Page 2 of 7 - Page ID # 16

At the status conference, the court will ensure that the initial disclosure requirements have
been met. The parties will be expected to have named all known lay witnesses and identified expert
witnesses, even though disclosure of full reports may not yet have occurred. The court will rule on
any outstanding discovery disputes. The parties will be expected to discuss and schedule the
disclosure of expert witness reports and summary judgment motions. The court will explore the
possibilities for mediation. The parties will be expected to have discussed settlement with their
clients and obtained authority in advance of the status conference. A final progression order will
be established. Finally, the case will be scheduled for trial for a week certain before the assigned
district judge or magistrate judge. Based upon the trial schedule, a final pretrial conference date will
be set, as well as a date for the formal close of all discovery.
Consent Trials
Special trial settings before this Court are available.
A consent form is enclosed for your review. A consent to trial by a magistrate judge cannot
be initiated by motion. Rather, all parties must sign the consent form and submit it to the chambers
of the assigned district court judge. Upon the filing of the consent form, counsel will be contacted
by the chambers of the magistrate judge regarding scheduling and establishing a special setting for
trial. It is the courts experience that cases are most expeditiously handled when the issue of consent
is considered early on in the scheduling of the case in order to provide the parties with a greater
option of trial scheduling dates.
Deadline for Report to the Court
Please review the enclosed form. It provides an agenda for the parties initial conference.
I expect the completed form to be electronically filed on or before October 12, 2010.
Thank you for your prompt attention to this matter.
Sincerely,

s/ Lyle E. Strom
LYLE E. STROM
United States District Judge
Enclosures

88

8:10-cv-00306-LES -TDT Doc # 8

Filed: 09/03/10 Page 3 of 7 - Page ID # 17

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA
)
)
)
)
)
)
)
)
)

Plaintiff(s),
v.

Defendant(s).
Counsel for the parties met on

8:10CV

REPORT OF PARTIES
PLANNING CONFERENCE

in person/by telephone.
; representing defendant(s) was/were

Representing plaintiff(s) was/were

. The parties discussed the case and jointly (except

as noted below) make the following report:
1.
The elements of the plaintiff's claims and the elements disputed by defendant are
as follows:
a.

Jurisdiction

b.

Venue

NOTE: If either jurisdiction or venue is being challenged, state whether counsel

wish to delay proceeding with the initial phases of discovery until those issues have
been decided, and if so, (i) how soon a motion to dismiss or transfer will be filed,
and (ii) what, if any, initial discovery, limited to that issue, will be necessary to
resolve the motion.

c.

CLAIM I:
Elements of Claim I: (list and number all substantive elements):

Of those elements, defendant disputes the following elements:

.
d.

CLAIM II:
89

8:10-cv-00306-LES -TDT Doc # 8

Filed: 09/03/10 Page 4 of 7 - Page ID # 18

Elements of Claim II: (list all substantive elements):

Of these elements, defendant disputes the following elements:

.
2.

The elements of the defenses raised by the pleadings are:

a.

FIRST DEFENSE:
Elements (again, by number):

Of these elements, plaintiff disputes the following elements:

.
b.

SECOND DEFENSE:
Elements:

Of these elements, plaintiff disputes the following elements:

.
3.
Of the disputed elements identified above by all parties, discovery will be necessary
to resolve the following elements:
.
4.
The plaintiff
does
does not anticipate a need to amend pleadings or add
parties; if necessary, plaintiff can file the necessary motions to add parties or amend
pleadings by:
. If more than ninety days, the reasons that much
time is necessary are:
.
5.
The defendant
does
does not anticipate a need to amend pleadings or add
parties; if necessary, defendant can file the necessary motions to add parties or amend
pleadings by:
. If more than ninety days, the reasons that much
time is necessary are:
.
90

8:10-cv-00306-LES -TDT Doc # 8

Filed: 09/03/10 Page 5 of 7 - Page ID # 19

6.
The parties submit that the following elements of the pending claims or defenses
may be appropriate for disposition by summary judgment or partial summary judgment:
; and state that the discovery necessary to
determine whether to file summary judgment motions on such element(s) can be completed
by
.
7.

The parties submit the following plan for their completion of discovery:
a.
Disclosures required by Rule 26(a)(1), including a statement of how each
matter disclosed relates to the elements of the disclosing party's claims or defenses,
have been completed;
will be completed by
.
b.
Is the maximum number of interrogatories, including subparts, that
may be served by any party on any other party.
c.
Is the maximum number of depositions that may be taken by plaintiffs
as a group and defendants as a group.
d. Depositions shall be limited by Rule 30(d)(2) except the depositions of
, which by agreement are limited as
follows:
.
e.
All parties will identify experts (i.e., with full reports required by Rule
26(a)(2), by
.

8.

a.
The parties request that this case be referred immediately for
mediation in accordance with the court's Mediation Plan as amended October
1, 2000, to the following mediator from the court's list of approved mediators:
.
b.
The parties state that they intend to hire their own mediator or neutral
person for mediation or negotiation, and request that the court stay further
progression of this case for
days to accommodate their efforts to
settle now.
c.
The parties state that this case will not be settled, and the court should
not plan or schedule settlement conferences, mediation or other alternative
dispute resolution techniques.
d.
The parties submit that the minimum discovery necessary for counsel
to negotiate toward settlement is:
, and
state that it will be completed by
.
The parties anticipate the court will contact them at that time to further
explore settlement.
91

8:10-cv-00306-LES -TDT Doc # 8

Filed: 09/03/10 Page 6 of 7 - Page ID # 20

9.
The parties
do
do not consent to trial by a magistrate judge. If the parties
consent to trial by a magistrate judge, enclose the executed consent.
10.
The parties now anticipate that the case can be ready for trial in
,
200 . If more than eight months are required, state the special problems or circumstances
that necessitate that much time for trial preparation are:

.
11.
It now appears to counsel that the trial of this case, if necessary, will require
trial days.
12.
Other matters to which the parties stipulate and/or which the court should
know/consider:

Counsel for Plaintiff

Counsel for Defendant

92

8:10-cv-00306-LES -TDT Doc # 8

Filed: 09/03/10 Page 7 of 7 - Page ID # 21

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA
_____________________________,
Plaintiff

)
)
)
)
)
)
)
)

v.

_____________________________,
Defendant

Case Number: __:___CV__________

CONSENT TO EXERCISE
OF JURISDICTION BY A
UNITED STATES MAGISTRATE JUDGE
AND
ORDER OF REFERENCE

CONSENT TO EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE

JUDGE
In accordance with the provisions of 28 U.S.C. 636(c) and Fed. R. Civ. P. 73, the parties
in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all
further proceedings in the case, including the trial, and order the entry of a final judgment. Any
appeal shall be taken to the United States court of appeals for this circuit.
Signature of Attorney or Party

Name of Party

Date

_______________________________

For_________________________

_______________

_______________________________

For_________________________

_______________

_______________________________

For_________________________

_______________

_______________________________

For_________________________

_______________

_______________________________

For_________________________

_______________

ORDER OF REFERENCE
IT IS HEREBY ORDERED that this case be referred to the Honorable
__________________________________________, United States Magistrate Judge, for all further
proceedings and the entry of judgment in accordance with 28 U.S.C. 636(c), Fed. R. Civ. P. 73 and
the foregoing consent of the parties.

___________________________
Date

______________________________________________
United States District Judge

NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES
HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A
UNITED STATES MAGISTRATE JUDGE.
93

SAMPLE Report of Parties Rule 26(f) Planning

Conference

94

8:10-cv-00306-LES -TDT Doc # 9

Filed: 09/13/10 Page 1 of 5 - Page ID # 22

Example of Report of
Parties' Rule 26(f)
Planning Conference

95

8:10-cv-00306-LES -TDT Doc # 9

Filed: 09/13/10 Page 2 of 5 - Page ID # 23

96

8:10-cv-00306-LES -TDT Doc # 9

Filed: 09/13/10 Page 3 of 5 - Page ID # 24

97

8:10-cv-00306-LES -TDT Doc # 9

Filed: 09/13/10 Page 4 of 5 - Page ID # 25

98

8:10-cv-00306-LES -TDT Doc # 9

Filed: 09/13/10 Page 5 of 5 - Page ID # 26

99

SAMPLE Order for Scheduling Conference

100

8:10-cv-00306-LES -TDT Doc # 10

Filed: 09/14/10 Page 1 of 1 - Page ID # 27

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEBRASKA
JEFFREY L. WILHITE

)
)
Plaintiff,
)
)
vs.
)
)
UNION PACIFIC RAILROAD COMPANY, )
A Corporation,
)
)
Defendant.
)
________________________________)

8:10CV306

Example of Order for

Scheduling Conference
issued by the Federal
Court

ORDER

This matter is before the Court after receipt of the

report of parties planning conference (Filing No. 9).
IT IS ORDERED that a scheduling conference with the
undersigned will be held on:
Wednesday, October 13, 2010, at 8:15 a.m.
in Suite 3190, Roman L. Hruska U.S. Courthouse, 111 South 18th
Plaza, OMAHA, Nebraska, to establish a final progression order
for this case.

The parties may participate by telephone by

notifying Judge Stroms office prior to said date.

DATED this 14th day of September, 2010.
BY THE COURT:
/S/ Lyle E. Strom
______________________________
LYLE E. STROM, Senior Judge
United States District Court

101

SAMPLE Medical Records Subpoena

102

IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA

DONALD R. DAVIS,
Plaintiff,
vs.
UNION PACIFIC RAILROAD COMPANY,
A Corporation,
Defendant.

TO:

)
)
)
)
)
)
)
)
)
)
)

DOC. 1092

NO. 291

RULE 6-334(A) RECORDS SUBPOENA

Dr. Devin Fox and any other providers of medical treatment, Union Pacific Railway
Hospital Association, 1416 Dodge Street, Omaha, NE 68179
Pursuant to the authority granted in 25-1273 R.R.S. Nebraska and Neb. Ct. R. Disc.

334(A), YOU ARE HEREBY COMMANDED to appear before a representative of Inserra &
Kelley, 6790 Grover Street, Suite 200, Omaha, NE 68106-3612, a law firm within the State of
Nebraska, on or before January 27, 2010, at 9:00 a.m., in the above-entitled action.
YOU ARE FURTHER COMMANDED to have and bring with you, or mail, the following
records in your possession including, but not limited to:
All records in your possession relating to the care and treatment of DONALD R.
DAVIS; SSN: 508-64-6870; DOB: 07/11/1949 , comprising true, correct, and complete
copies of any and all medical records of any kind including, but not limited to, medical
reports, consultation reports, doctors notes, history and physical, operative reports,
nurses notes, correspondence, x-ray and other diagnostic reports or films, itemized
statements or other billing records, and any and all documentary material of any kind.
IN LIEU OF A PERSONAL APPEARANCE, YOU MAY DELIVER/MAIL A
CLEAR AND FULLY LEGIBLE COPY OF THESE RECORDS, PRIOR TO
JANUARY 25, 2010 TO:
Christina L. Koch, ACP, Paralegal
Inserra & Kelley
6790 Grover Street, Suite 200
Omaha, NE 68106-3612

RULE 6-334(A) RECORDS SUBPOENA - 1

103

A copy of Neb. Ct. R. Disc. 6-334(A) is attached to this subpoena in compliance with Neb. Ct.
R. Disc. 6-334(A)(3). Pursuant to Neb. Ct. R. Disc. 6-334(A), a notice of the serving of this
subpoena was either sent to the following or notice was waived by:

Attorney for Defendant: Anne Marie OBrien, LAMSON, DUGAN & MURRAY, LLP,
10306 Regency Parkway Drive, Omaha, NE 68114

I HAVE HEREBY ISSUED THIS SUBPOENA PURSUANT TO THE AUTHORITY

GRANTED IN 25-1273 R.R.S. NEBRASKA ON THIS ______ DAY OF JANUARY,
2010. HEREOF FAIL NOT UNDER PENALTY OF THE LAW.
DATED on this ______ day of January, 2010.

By:___________________________
John P. Inserra, #15084
INSERRA & KELLEY
6790 Grover Street, Suite 200
Omaha, Nebraska 68106-3612
(402) 391-4000
(402) 391-4039 (Fax)
Attorneys for Plaintiff
jpinserra@inserra.com

***Refer any inquiries to Christina L. Koch, ACP, Advanced Certified Paralegal, Inserra &
Kelley, 6790 Grover Street, Suite 200, Omaha, NE 68106-3612; Phone (402) 391-4000; Fax
(402) 391-4039

RULE 6-334(A) RECORDS SUBPOENA - 2

104

 6-334(A). Discovery from a nonparty without a deposition.

(a)

Procedure.
(1)

(2)

Scope. Any party may, by subpoena without a deposition:

(A)

require the production for inspection, copying, testing, or sampling of

designated books, papers, documents, tangible things, or electronically
stored information (including writings, drawings, graphs, charts,
photographs, sound recordings, and other data compilations from which
information can be obtained) translated if necessary by the owner or
custodian into reasonably usable form, that are in the possession, custody,
or control of a person who is not a party and within the scope of Rule
26(b); or

(B)

obtain entry upon designated land or other property within the scope of
Rule 26(b) that is in the possession or control of a person who is not a
party for the purpose of inspection and measuring, surveying,
photographing, testing, or sampling the property or any designated object
or operation thereon.

Notice. A party intending to serve a subpoena pursuant to this rule shall give
notice in writing to every other party to the action at least 10 days before the
subpoena will be issued. The notice shall state the name and address of the person
who will be subpoenaed, the time and place for production or entry, and that the
subpoena will be issued on or after a stated date. A designation of the materials
sought to be produced shall be attached to or included in the notice.
Such notice may be given by a party other than a plaintiff at any time. Such notice
may not be given by a plaintiff until the time at which Rule 30(a) would permit a
plaintiff to take a deposition.

(3)

Issuance. A subpoena may be issued pursuant to this rule, either by a request to

the clerk of the court or by an attorney authorized to do so by statute, at any time
after all parties have been given the notice required by subsection (2). The
subpoena shall identify all parties who were given notice that it would be issued
and the date upon which each of them was given notice. A subpoena pursuant to
this rule shall include or be accompanied by a copy of this rule.

(4)

Time, manner, and return of service. A subpoena pursuant to this rule shall be
served either personally by any person not interested in the action or by registered
or certified mail not less than 10 days before the time specified for compliance.
The person making personal service shall make a return showing the manner of
service to the party for whom the subpoena was issued.

RULE 6-334(A) RECORDS SUBPOENA - 3

105

(b)

(c)

Protection of Other Parties.

(1)

Objection Before Issued. Before the subpoena is requested or

issued any party may serve a written objection on the party who
gave notice that it would be issued. The objection shall specifically
identify any intended production or entry that is protected by an
applicable privilege, that is not within the scope ofdiscovery, or
that would be unreasonably intrusive or oppressive to the party. No
subpoena shall demand production of any material or entry upon
any premises identified in the objection. If the objection
specifically objects that the person served with the subpoena
should not have the option to deliver or mail copies of documents
or things directly to a party, the subpoena shall not be issued unless
all parties to the lawsuit mutually agree on the method for delivery
of the copies.

(2)

Order. The party who gave notice that a subpoena would be issued
may apply to the court in which the action is pending for an order
with respect to any discovery for which another party has served a
written objection. Upon hearing after notice to all parties the court
may order that the subpoena be issued or not issued or that
discovery proceed in a different manner, may enter any protective
order authorized by Rule 26(c), and may award expenses as
authorized by Rule 37(a)(4).

(3)

Protective Order. After a subpoena has been issued any party may
move for a protective order under Rule 26(c).

Protection of the Person Served with a Subpoena.

(1)

Avoiding Burden and Expense. A party or an attorney who obtains

discovery pursuant to this rule shall take reasonable steps to avoid
imposing undue burden or expense on a person subject to that
subpoena. The court by which the subpoena was issued shall
enforce this duty and impose upon the party or attorney in breach
of this duty an appropriate sanction, which may include, but is not
limited to, lost earnings of the person subject to the subpoena and
reasonable attorney fees.

(2)

Responding to the Subpoena.

(A)

A person served with a subpoena pursuant to this rule shall

permit inspection, copying, testing, or sampling either
where the documents or tangible things are regularly kept
or at some other reasonable place designated by that

RULE 6-334(A) RECORDS SUBPOENA - 4

106

person. If the subpoena states that the person served has an

option to deliver or mail legible copies of documents or
things instead of inspection, that person may condition the
preparation of the copies on the advance payment of the
reasonable cost of copying.
(B)

(3)

(d)

A person served with a subpoena pursuant to this rule may,

within 10 days after service of the subpoena, serve upon the
party for whom the subpoena was issued a written
objection to production of any or all of the designated
materials or entry upon the premises. If objection is made,
the party for whom the subpoena was issued shall not be
entitled to production of the materials or entry upon
premises except pursuant to an order of the court. If an
objection has been made, the party for whom the subpoena
was issued may, upon notice to all other parties and the
person served with the subpoena, move at any time in the
district court in the county in which the subpoena is served
for an order to compel compliance with the subpoena. Such
an order to compel production or to permit entry shall
protect any person who is not a party or an officer of a
party from significant expense resulting from complying
with the command.

Protections. On timely motion, the court by which a subpoena was

issued shall quash or modify the subpoena if it:
(A)

fails to allow reasonable time for compliance,

(B)

requires disclosure of privileged or other protected matter

and no exception or waiver applies, or

(C)

subjects a person to undue burden.

Duties in Responding to Subpoena.

(1)

Production. A person responding to a subpoena to produce

documents shall produce them as they are kept in the usual course
of business or shall organize and label them to correspond with the
categories in the demand.

(2)

Objection. When information subject to a subpoena is withheld on

an objection that it is privileged, not within the scope of discovery,
or otherwise protected from discovery, the claim shall be made
expressly and shall be supported by a description of the nature of
the documents, communications, or things not produced that is

RULE 6-334(A) RECORDS SUBPOENA - 5

107

sufficient to enable the party who requested the subpoena to

contest the objection.
(e)

Coordination.
(1)

Copies. If the party for whom the subpoena was issued creates or
obtains copies of documents or things, that party shall make
available a duplicate of such copies at the request of any other
party upon advance payment of the reasonable cost of making the
copies.

(2)

Inspection. If a notice of intent to serve a subpoena designates that

the subpoena will require entry upon land or other property for the
purposes permitted by subsection (a)(1)(B), any other party shall,
upon request to the party who gave the notice, be named in the
subpoena as also attending at the same time and place.
COMMENT TO RULE 34A

Authority to issue a subpoena pursuant to this rule is governed by Neb. Rev. Stat. 25-1273. The
procedure is similar to the practice for nonparty nondeposition discovery under Fed. R. Civ. P.
45, with certain topics such as the time of prior notice and coordination of the disclosure more
specifically defined. This procedure is optional, so a party may elect to use a deposition or any
other available discovery procedure instead.
Rule 34A and Comment adopted December 12, 2001; Rule 34A(c)(2)(B) amended May 19,
2004; Rule 34A(a)(1)(A), 34A(a)(2), 34A(b)(1), 34A(c)(2)(A-B) amended June 4, 2008,
effective June 18, 2008. Renumbered and codified as 6-334(A), effective July 18, 2008.

RULE 6-334(A) RECORDS SUBPOENA - 6

108

SAMPLE FOIA Principle Contacts Listing

109

http://www.justice.gov/oip/foiacontacts.htm

USDOJ: FOIA: Principal FOIA Contacts at Federal Agencies

E-mail updates

Principal FOIA Contacts at Federal Agencies

FOIA

All DOJ

GENERAL INFORMATION
MAKING A FOIA REQUEST
READING ROOMS
REFERENCE GUIDE
DEPARTMENT COMPONENTS
DOJ COMPONENTS' FOIA
SERVICE CENTERS/LIAISONS
PRINCIPAL FOIA CONTACTS AT
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OIP HOME
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The Department of Justice's Office of Information Policy

(OIP) is the principal contact point within the executive
branch for advice and policy guidance on matters
pertaining to the administration of the Freedom of
Information Act. Through OIP's FOIA Counselor service,
experienced FOIA advisers are available to respond to
FOIA-related inquiries at (202) 514-3642 (514-FOIA). For
inter-agency contact purposes, the following list contains
the principal FOIA contacts at all federal agencies dealing
regularly with FOIA matters. In some instances (e.g., the
Department of Defense), all major agency components are
listed individually under the agencies. In other instances
(e.g., the Food and Drug Administration), major agency
components are listed separately. In still other instances
(e.g., the Department of Labor), no components are
listed, as it is the agency's preference that all FOIA
contacts be made through its main FOIA office. Fax
numbers and e-mail addresses are provided as a matter of
agency preference as well. All telephone and fax numbers
are listed by local area code, which can be dialed in the
federal long distance system. OIP should be notified
whenever there is a change in a principal agency FOIA
contact or any change in title, telephone or fax number, or
address.
Federal Departments
Department of Agriculture
Courtney Wilkerson
Departmental FOIA Officer
Room 405W, Whitten Building
Washington, D.C. 20250-1300
telephone number: (202) 720-0664
Department of Commerce
Brenda Dolan
FOIA/PA Officer, Room 5327
14th Street and Constitution Avenue, N.W.
Washington, D.C. 20230
telephone number: (202) 482-3258
fax number: (202) 219-8979
e-mail address: EFoia@doc.gov
National Oceanic and Atmospheric Administration
Jean Carter-Johnson
FOIA/PA Officer
Room 10641, SSMC-3
1315 East West Highway
Silver Spring, MD 20910-3281
telephone number: (301) 713-3540, ext. 209
fax number: (301) 713-1169
Department of Defense (Policy Guidance Only)
Jim Hogan
Defense Freedom of Information Policy Office

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USDOJ: FOIA: Principal FOIA Contacts at Federal Agencies

1155 Defense Pentagon

Washington, D.C. 20301-1155
telephone number: (703) 696-4689
toll-free number: (866) 574-4970
fax number: (703) 696-4506
Air Force
John Espinal/Della Macias
HAF/IMIO (FOIA)
1000 Air Force Pentagon
Washington, D.C. 20330-1000
telephone number: (703) 693-2735 or 693-2579
fax number: (703) 693-5728
public access link: https://www.efoia.af.mil
/palMain.aspx
Army
Robert Dickerson
Chief, Freedom of Information Act Office
Attn: AAHS-RDF
7701 Telegraph Road, Suite 150
Alexandria, VA 22315-3905
telephone number: (703) 428-7128
fax number: (703) 428-6522
e-mail address: DAFOIA@conus.army.mil
Defense Commissary Agency (DeCA)
Camillo DeSantis
FOIA/Privacy Officer
1300 E Avenue
Fort Lee, VA 23801-1800
telephone number: (804) 734-8116
fax number: (804) 734-8259
e-mail address: foia@deca.mil
Defense Contract Audit Agency
Keith Mastromichalis
8725 John J. Kingman Road, Suite 2135
Fort Belvoir, VA 22060-6219
telephone number: (703) 767-1022
fax number: (703) 767-1011
e-mail address: DCAA-FOIA@dcaa.mil
Defense Contract Management Agency
Donna Williamson
FOIA/Privacy Officer
Fort Lee Transition Office
13205 N. Enon Church Road
Chester, VA 23836
telephone number: (804) 416-9044
Defense Finance and Accounting Service
Gregory Outlaw
FOIA/PA Program Manager
FOIA Liaison Officer
DFAS-HKC/IN
8899 E. 56th Street
Indianapolis, IN 46249-0150
telephone number: (317) 510-8795
fax number: (317) 510-8802
e-mail address: Gregory.Outlaw@dfas.mil
Defense Information Systems Agency
Robin M. Berger
Code GC, P.O. Box 4502
Arlington, VA 22204-4502

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telephone number: (703) 607-6515

fax number: (703) 607-4344
e-mail address: robin.berger@disa.mil
Defense Intelligence Agency
Alesia Y. Williams
ATTN: DIAC, DAN-1A
Bldg. 6000
Washington, D.C. 20340-5100
telephone number: (301) 394-5587
fax number: (301) 394-5356
e-mail address: foia@dia.mil
Defense Logistics Agency
Lewis Oleinick
Chief Privacy and FOIA Officer
ATTN: DG/FOIA & Privacy Team
8725 John J. Kingman Road, Stop 2533
Fort Belvoir, VA 22060-6221
telephone number: (703) 767-5247
fax number: (703) 767-6091
Defense Security Service
Les Blake
Chief, Office of FOIA and Privacy, GCF
1340 Braddock Place
Alexandria, VA 22314-1651
telephone number: (703) 325-9450
fax number: (703) 325-5341
e-mail address: leslie.blake@mail.dss.mil
Defense Technical Information Center
Kelly D. Akers (DTIC-R)
8725 John J. Kingman Road, Suite 0944
Fort Belvoir, VA 22060-6218
telephone number: (703) 767-9194
fax number: (703) 767-9201
e-mail address: foia@dtic.mil
Defense Threat Reduction Agency
Brenda Carter
COSMF (FOIA/Privacy)
MSC 6201
8725 John J. Kingman Road
Fort Belvoir, VA 22060-6201
telephone number: (703) 767-1792
fax number: (703) 767-3623
e-mail address: efoia@dtra.mil
Department of Defense Education Activity
Nancy Ramsay
FOIA Requestor Service Center/PA Office
Office of the Executive Services
4040 North Fairfax Drive
Arlington, VA 22203-1635
telephone number: (703) 588-3204
fax number: (703) 588-3701
e-mail address: FOIA@hq.dodea.edu
Marine Corps
Teresa (Tracy) D. Ross
FOIA/PA Coordinator
Headquarters, U.S. Marine Corps [CMC (ARSF)]
2 Navy Annex
Washington, D.C. 20380-1775
telephone number: (703) 614-4008/3685

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fax number: (703) 614-6287

e-mail address: smb.hqmc.foia@usmc.mil
Missile Defense Agency
Michelle McLeod
ATTN: FOIA Requester Service Center
Building 5222, Martin Road/DS/VBII/2F142
Redstone Arsenal, Alabama 35898
telephone number: (256) 450-2383
fax number: (256) 450-1210
e-mail address: MDAFOIA@mda.mil
National Geospatial-Intelligence Agency
Annette Newman
FOIA Requester Service Center
4600 Sangamore Road (D-10)
Bethesda, MD 20816
telephone number: (301) 227-2268
fax number: (301) 227-2035
National Guard Bureau/JA-FOIA
Attn: Ms. Jennifer Nikolaisen
1411 Jefferson Davis Highway
Suite 11300
Arlington VA 22202
Fax (703) 607-3684
e-mail address: FOIA@ng.army.mil
National Reconnaissance Office
Information Access and Release Center
14675 Lee Road
Chantilly, VA 20151-1715
telephone number: (703) 227-9128
fax number: (703) 227-9198
e-mail address: foia@nro.mil
National Security Agency
Marianne Stupar
FOIA Requester Servivce Center/DJP4
9800 Savage Road, Suite 6248
Ft. George G. Meade, MD 20755-6248
telephone number: (301) 688-6527
fax number: (301) 688-4762
Navy
Harry Craney
Chief of Naval Operations (DNS-36)
2000 Navy Pentagon
Washington, DC 20350-2000
telephone: (202) 685-6511
e-mail: harry.craney@navy.mil
Office of the Inspector General
Jeanne Miller
Director, Freedom of Information Division
400 Army Navy Drive, Suite 1022
Arlington, VA 22202-4704
telephone number: (703) 604-9775
toll-free number: (866) 993-7005
fax number: (703) 602-0294
Office of the Secretary of Defense and Joint Staff
Paul Jacobsmeyer
OSD/JS FOIA Requester Service Center
Office of Freedom of Information
1155 Defense Pentagon

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http://www.justice.gov/oip/foiacontacts.htm

Washington, D.C. 20301-1155

telephone number: (703) 696-4689
toll-free number: (866) 574-4970
fax number: (703) 696-4506
TRICARE Management Activity
Elizabeth (Jane) Bomgardner
Chief, FOIA Information Service Center
16401 East Centretech Parkway
Aurora, CO 8011-9066
telephone number: (303) 371-8677
Fax number: (303) 371-4170
e-mail address: FOIARequests@tma.osd.mil
United States Africa Command FOIA Requester
Service Center
Traceyjayne Ife
Attn: FOIA Requester Service Center
Unit 29951
APO AE 09751
telephone number: 49-0711-729-4287
United States Central Command FOIA Requester
Service Center
Jacqueline J. Scott
ATTN: CCJ6-R (FOIA)
7115 South Boundary Blvd.
MacDill AFB, FL 33621-5101
telephone number: (813) 827-6413
United States European Command FOIA Requester
Service Center
Naomi Ludan
ATTN: ECJ1-RS (FOIA), Unit 30400
APO, AE 09131
telephone number: 49 011 711 680-7161
fax number: 49 011 711 680-8092
United States Joint Forces Command FOIA
Requester Service Center
Jeanne Yeager
Code J024
1562 Mitscher Avenue, Suite 200
Norfolk, VA 23551-2488
telephone number: (757) 836-7138
fax number: (757) 836-5946
United States Northern Command FOIA Requester
Service Center
Luis Aguilar
250 Vandenberg Street, Suite B016
Peterson Air Force Base, CO 80914-3804
telephone number: (719) 554-8017
fax number: (719) 554-4431
United States Pacific Command FOIA Requester
Service Center
Maureen Jones
HQ USPACOM
ATTN J151 FOIA
PO Box 64017
Camp H.M. Smith, HI 96861-4017
telephone number: (808) 477-6432
fax number: (808) 477-6685
e-mail address: pacom.foia.fct@pacom.mil

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United States Special Operations Command FOIA

Requester Service Center
Phyllis Holden/Doreen Agard
SOCS-SJS-I/FOIA Service Center
7701 Tampa Point Boulevard
MacDill Air Force Base, FL 33621-5323
telephone number: (813) 826-1579
fax number: (813) 826-5482
e-mail address: foia@socom.mil
United States Southern Command FOIA Requester
Service Center
Marco Villalobos
ATTN: ES-SM-CFO-FOIA
3511 NW 91st Avenue
Miami, FL 33172-1217
telephone number: (305) 437-1108
fax number: (305) 437-2952
United States Strategic Command FOIA Requester
Service Center
SSGT Angela Parker
ATTN: J011 (FOIA)
901 SAC Boulevard, Suite 1A6
Offutt Air Force Base, NE 68113-6000
telephone number: (402) 232-1764
fax number: (402) 294-7535
e-mail address: foia@stratcom.mil
United States Transportation Command FOIA
Requester Service Center
JoLynn Bien
ATTN: TCCS-IM
508 Scott Drive, Building 1961
Scott Air Force Base, IL 62225-5357
telephone number: (618) 229-4063
fax number: (618) 229-4711
e-mail address: ustccs-im@ustranscom.mil
Department of Education
Delores J. Barber, Chief
FOIA Service Center
400 Maryland Ave., SW, 2W202
Washington, D.C. 202024536
telephone number: (202) 401-1995
fax number: (202) 401-0920
Department of Energy
Alexander Morris
FOIA Officer
1000 Independence Avenue, S.W.
Washington, D.C. 20585
telephone number: (202) 586-5955
fax number: (202) 586-0575
Department of Health and Human Services
Robert Eckert
Director, FOIA/Privacy Division
Room 5416, Mary E. Switzer Building
330 C Street, S.W.
Washington, D.C. 20201
telephone number: (202) 690-7453
fax number: (202) 690-8320
Centers for Medicare & Medicaid Services

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Michael S. Marquis
Director, Freedom of Information Group
Room N2-20-16
7500 Security Boulevard
Baltimore, MD 21244-1850
telephone number: (410) 786-5353
fax number: (410) 786-0474
Food and Drug Administration
Frederick J. Sadler
Director, FOI Staff
5600 Fishers Lane (HFI-30)
Rockville, MD 20857
telephone number: (301) 827-6567
fax number: (301) 443-1726
National Institutes of Health
Susan R. Cornell
FOIA Officer
Building 31, Room 5B35
9000 Rockville Pike
Bethesda, MD 20892
telephone number: (301) 496-5633
fax number: (301) 402-4541
Public Health Service
Carol Maloney
FOIA Officer
Room 17A46
5600 Fishers Lane
Rockville, MD 20857
telephone number: (301) 443-5252
fax number: (301) 443-0925

Department of Homeland Security

Catherine M. Papoi
Deputy Chief FOIA Officer
Director, Disclosure & FOIA
The Privacy Office
245 Murray Drive, S.W.
STOP-0550
Washington, DC 20528-0550
toll-free number: (866) 431-0486
telephone number: (703) 235-0790
fax number: (703) 235-0443
e-mail address: foia@dhs.gov
Bureau of Customs and Border Protection
Mark Hanson
Director
FOIA Division
799 9th Street, NW
Mint Annex
Washington, DC 20229
telephone number: (202) 325-0150
fax number: (202) 325-0154
United States Citizenship and Immigration
Services
Jill Eggleston
FOIA Officer
FOIA/PA Program
150 Space Center Loop, Suite 300
Lee's Summit, MO 64064-8010

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telephone number: (816) 350-5570

fax number: (816) 350-5785
e-mail address: USCIS.FOIA@DHS.GOV
United States Coast Guard
Donald G. Taylor
HQ USCG Commandant, CG-611
Washington, D.C. 20593-0001
telephone number: (202) 475-3519
fax number: (202) 475-3926

Federal Emergency Management Agency

Pauline Byrd
Disclosure Officer
Records Management Division, Room 301
Office of Management
500 C Street, SW
Washington, D.C. 20472
telephone number: (202) 646-3323

Federal Law Enforcement Training Center

Marty Zimmerman-Pate
1131 Chapel Crossing Road, Building 681
Glynco, GA 31524
telephone number: (912) 267-3103
fax number: (912) 267-3113
United States Immigration and Customs
Enforcement
Catrina Pavlik-Keenan
800 N. Capitol Street
Fifth Floor, Suite 585
Washington, D.C. 20536
Telephone number: (202) 732-0300
Toll-free number: (866) 633-1182
Fax number: (202) 732-0310
Office of Inspector General
Nikki Gramian
245 Murray Drive, Building 410
Mail Stop 2600
Washington, D.C. 20528-0001
telephone number: (202) 254-4001
fax number: (202) 254-4287
United States Secret Service
Latita M. Payne
Disclosure Officer
Bldg. 410
245 Murray Drive
Washington, D.C. 20223
telephone number: (202) 406-5838
fax number: (202) 406-5154
Transportation Security Administration
Kevin J. Janet
FOIA Officer, TSA-20
601 South 12th Street
Arlington, VA 22202-4220
telephone number: (571) 227-2300
fax number: (571) 227-1406
US-VISIT

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Sheree H. Watt
FOIA Officer
Washington, D.C. 20528
telephone number: (202) 298-5200
fax number: (202) 298-5215
e-mail address: sheree.watt@dhs.gov

Department of Housing and Urban Development

Cynthia A. O'Connor
Executive Secretary
Room 10139
451 7th Street, S.W.
Washington, D.C. 20410
telephone number: (202) 708-3054
fax number: (202) 619-8365
e-mail address: foia_hud@hud.gov
Department of the Interior
Alexandra Mallus
Departmental FOIA Officer (MS-7438 MIB)
Office of the Chief Information Officer
1849 C Street, N.W.
Washington, D.C. 20240
telephone number: (202) 208-5342
fax number: (202) 208-6867
e-mail address: alexandra_mallus@ios.doi.gov
Department of Justice
FOIA Contacts
Department of Labor
Joseph J. Plick
Office of the Solicitor, Room N-2428
200 Constitution Avenue, N.W.
Washington, D.C. 20210
telephone number: (202) 693-5500
fax number: (202) 693-5538
Department of State
Margaret P. Grafeld
Director, Office of IRM Programs and Services, SA-2
5th Floor
Washington, D.C. 20522-6001
telephone number for inquiries: (202) 261-8484
fax number: (202) 261-8579
Department of Transportation
Kathy Ray
Departmental FOIA Officer
Office of the General Counsel (C-12)
1200 New Jersey Ave., SE., Suite W94-122
Washington, D.C. 20590
telephone number: (202) 366-4542
fax number: (202) 366-8536
Federal Aviation Administration
Douglas C. Taylor, Manager
National FOIA Staff, ARC-40
800 Independence Avenue, S.W.
Washington, D.C. 20591
telephone number: (202) 267-9165
fax number: (202) 493-5032
e-mail address: 7-AWA-ARC-FOIA@faa.gov

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Department of the Treasury

Hugh Gilmore, Director
Disclosure Services
1500 Pennsylvania Avenue, N.W.
Washington, D.C. 20220
telephone number: (202) 622-0930
fax number: (202) 622-3895

Comptroller of the Currency

Frank Vance, Jr.
Disclosure Officer
Washington, D.C. 20219
telephone number: (202) 874-4700
fax number: (202) 874-5274
e-mail address: foia-pa@occ.treas.gov
Internal Revenue Service
Gary T. Prutsman
Chief, Disclosure
Office of Disclosure
1111 Constitution Avenue, N.W. Room 2012
Washington, D.C. 20224
telephone number: (202) 622-5606
Office of Thrift Supervision
Roslyn Weeks
Program Specialist (FOIA)
Dissemination Branch
1700 G Street, N.W.
Washington, D.C. 20552
telephone number: (202) 906-5922
fax number: (202) 906-7755
e-mail address: public.info@ots.treas.gov
Department of Veterans Affairs
Lizzette Katilius, Acting Director
FOIA Service (005R1C)
810 Vermont Avenue, N.W.
Washington, D.C. 20420
telephone number: (202) 461-7458
fax number: (202) 273-0487
Federal Agencies
Agency for International Development
Sylvia Lankford
FOIA Coordinator
Room 2.07C, RRB
Washington, D.C. 20523-2701
telephone number: (202) 712-1217
fax number: (202) 216-3070
American Battle Monuments Commission
Martha Sell
FOIA Assistant
Suite 500
2300 Clarendon Blvd.
Arlington, VA 22201
Amtrak (National Railroad Passenger Corporation)
Medaris W. Oliveri
FOIA Officer
60 Massachusetts Avenue, N.E.
Washington, D.C. 20002

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telephone number: (202) 906-2728

fax number: (202) 906-2169
Broadcasting Board of Governors
Joan Davis
FOIA/PA Officer
Office of the General Counsel
Suite 3349
330 Independence Avenue, S.W.
Washington, D.C. 20237
telephone number: (202) 203-4550
fax number: (202) 203-4585
Central Intelligence Agency
Delores Nelson
Information and Privacy Coordinator
Washington, D.C. 20505
telephone number: (703) 613-1287
Chemical Safety and Hazard Investigation Board
Christopher Kirkpatrick
FOIA Officer
Suite C-100
2175 K Street, N.W.
Washington, D.C. 20037
telephone number: (202) 261-7600
fax number: (202) 261-7650
Commission on Civil Rights
Christopher Byrnes
FOIA Officer
Room 621
624 9th Street, N.W.
Washington, D.C. 20425
telephone number: (202) 376-7700
fax number: (202) 376-1163
Committee for Purchase from People who Are Blind or Severely
Disabled
Dennis Lockard
General Counsel
Suite 10800
1421 Jefferson Davis Highway
Arlington, VA 22202-3259
telephone number: (703) 603-7740
fax number: (703) 603-0655
Commodity Futures Trading Commission
Stacy J. Easter
Paralegal Specialist
1155 21st Street, N.W.
Washington, D.C. 20581
telephone number: (202) 418-5011
fax number: (202) 418-5524
Consumer Product Safety Commission
Alberta E. Mills
FOIA Officer
4330 East West Highway
Bethesda, MD 20814
telephone number: (301) 504-7923
fax number: (301) 504-0127
Corporation for National Service
Angel Simmons
FOIA/PA Officer

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1201 New York Avenue, N.W., Room 10606

Washington, D.C. 20525
telephone number: (202) 606-6671
fax number: (202) 606-3467
Court Services and Offender Supervision Agency
Renee Barley
FOIA Officer
Room 1254
633 Indiana Avenue, N.W.
Washington, D.C. 20004-2902
telephone number: (202) 220-5355
fax number: (202) 220-5350
Defense Nuclear Facilities Safety Board
Andrew Thibadeau
FOIA Director
625 Indiana Avenue, N.W., Suite 700
Washington, D.C. 20004
telephone number: (202) 694-7088
fax number: (202) 208-6518
e-mail address: andrewt@dnfsb.gov
Environmental Protection Agency
Larry F. Gottesman
National FOIA Officer
Mail Code 2822T
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
telephone number: (202) 566-1667
fax number: (202) 566-2147
e-mail address: hq.foia@epamail.epa.gov
Equal Employment Opportunity Commission
Stephanie D. Garner
Assistant Legal Counsel/FOIA
131 M Street, NE, Suite 5NW02E
Washington, D.C. 20507
telephone number: (202) 663-4640
fax number: (202) 663-4639
Executive Office of the President
Council on Environmental Quality
Edward A. Boling
Deputy General Counsel
722 Jackson Place, N.W.
Washington, D.C. 20503
telephone number: (202) 395-5750
Office of Management and Budget
Dionne Hardy
FOIA Officer
9026 New Executive Office Building
Washington, D.C. 20503
telephone number: (202) 395-3642
fax number: (202) 395-3504
For policy guidance on FOIA fee matters, FOIA
Officers may call OMB's Sharon Mar at (202)
395-6466. Privacy Act Officers may call OMB's Kevin
Herms at (202) 395-3099 for Privacy Act policy
guidance.
Office of National Drug Control Policy
Daniel Petersen
Assistant General Counsel

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Washington, D.C. 20503

Office of Science and Technology Policy
Rachel Leonard
General Counsel
725 17th Street, N.W.
Washington, D.C. 20502
telephone number: (202) 456-6125
fax number: (202) 395-1224
Office of the United States Trade Representative
Jacqueline B. Caldwell
FOIA Officer
Second Floor
1724 F Street, N.W.
Washington, D.C. 20508
telephone number: (202) 395-3419
fax number: (202) 395-9458
e-mail address: jacqui_caldwell@ustr.gov
Export-Import Bank
Dawn R. Kral
FOIA Public Liaison
811 Vermont Avenue, N.W., Room 1053
Washington, D.C. 20571
telephone number: (202) 565-3248
fax number: (202) 565-3294
Farm Credit Administration
Bob Taylor
FOI Officer
1501 Farm Credit Drive
McLean, VA 22102-5090
telephone number: (703) 883-4129
fax number: (703) 790-0052
e-mail address: foiaofficer@fca.gov
Farm Credit System Insurance Corporation
Bob Taylor
FOI Officer
1501 Farm Credit Drive
McLean, VA 22102-5090
telephone number: (703) 883-4129
fax number: (703) 790-0052
e-mail address: foiaofficer@fca.gov
Federal Communications Commission
Shoko B. Hair
FOIA Officer
Room 5C406
445 12th Street, S.W.
Washington, D.C. 20554
telephone number: (202) 418-1379
fax number: (202) 418-0521
Federal Deposit Insurance Corporation
Hugo A. Zia
Supervisory Counsel, Room VS-D8122
550 17th Street, N.W.
Washington, D.C. 20429
telephone number: (703) 562-2671
fax number: (703) 562-2797
e-mail address: efoia@fdic.gov
Federal Election Commission
Lawrence Calvert

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Acting Chief FOIA Officer

999 E Street, N.W.
Washington, D.C. 20463
telephone number: (202) 694-1650
fax number: (202) 219-1043
Federal Energy Regulatory Commission
Leonard M. Tao
FOIA Officer, Office of External Affairs
Room 11H-7
888 First Street, NE
Washington, DC 20426
telephone number: (202) 502-8004
fax number: (202) 208-2106
Federal Financial Institutions Examination Council
Paul Sanford
Executive Secretary
3501 Fairfax Drive
Room D-8073a
Arlington, VA 22226-3550
telephone: (703) 516-5590
e-mail: FOIA@ffiec.gov
Federal Housing Finance Agency
Jeanne Ratchford
FOIA Officer
1700 G Street, NW
Washington, D.C. 20552
telephone number:(202) 414-6425
fax number: (202) 414-8917
e-mail address: foia@fhfb.gov
Federal Labor Relations Authority
Richard Zorn
FOIA Officer
Office of the General Counsel
Suite 210
607 14th Street, N.W.
Washington, D.C. 20424
telephone number: (202) 218-7743
fax number: (202) 482-6608
Federal Maritime Commission
Karen Gregory
Assistant Secretary
800 North Capitol Street, N.W., Room 1046
Washington, D.C. 20573
telephone number: (202) 523-5725
fax number: (202) 523-0014
Federal Mediation and Conciliation Service
Dawn E. Starr
General Counsel
Mery Skolochenko
Program Assistant
2100 K Street, N.W.
Washington, D.C. 20427
telephone number: (202) 606-5444
fax number: (202) 606-5345
e-mail address: foia@fmcs.gov
Federal Mine Safety and Health Review Commission
Linda H. Ghosal
Deputy General Counsel
601 New Jersey Avenue, N.W.

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Washington, D.C. 20001-2021

telephone number: (202) 434-9905
fax number: (202) 434-9944
Federal Open Market Committee
Carol R. Low
Secretariat Assistant
20th Street and Constitution Avenue, N.W., Mail Stop 55
Washington, D.C. 20551
telephone number: (202) 452-3255
fax number: (202) 452-2921
Federal Reserve System
Jean McLaughlin
FOIA Manager
20th and C Streets, N.W., Room MP500
Washington, D.C. 20551
telephone number: (202) 452-2407
fax number: (202) 872-7565
Federal Retirement Thrift Investment Board
James B. Petrick
Associate General Counsel and FOIA Officer
1250 H Street, N.W., 2nd Floor
Washington, D.C. 20005-3952
telephone number: (202) 942-1630
fax number: (202) 942-1676
Federal Trade Commission
Joan Fina
FOIA/PA Officer
6th Street and Pennsylvania Avenue, N.W.
Washington, D.C. 20580
telephone number: (202) 326-2013
fax number: (202) 326-2477
e-mail address: foia@ftc.gov
General Services Administration
Sharon V. Lighton
Administrative Policy Division (ACMA)
Office of Management Services
Room 6001
1800 F Street, N.W.
Washington, D.C. 20405
telephone number: (202) 501-2262
fax number: (202) 501-2727
e-mail address: gsa.foia@gsa.gov
Institute of Museum and Library Services
Mae Ridges
Office of the General Counsel
Ninth Floor
1800 M Street, N.W.
Washington, D.C. 20036
telephone number: (202) 653-4642
fax number: (202) 653-4610
e-mail address: foia@imls.gov
Inter-American Foundation
Rebecca Verreau
General Counsel
10th Floor
901 North Stuart Street
Arlington, VA 22203
telephone number: (703) 306-4364

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Legal Services Corporation

Patricia Batie
FOIA Officer
3333 K Street, N.W.
Washington, D.C. 20007
telephone number: (202) 295-1625
fax number: (202) 337-6519
e-mail address: info@smtp.lsc.gov
Merit Systems Protection Board
Arlin Winefordner
FOIA/PA Officer
Office of the Clerk
1615 M Street, N.W.
Washington, D.C. 20419
telephone number: (202) 653-7200, ext. 1162
fax number: (202) 653-7130
e-mail address: mspb@mspb.gov
Millennium Challenge Corporation
John C. Mantini
Assistant General Counsel for Administration
875 15th Street, N.W.
Washington, D.C. 20005
telephone number: (202) 521-3863
National Aeronautics and Space Administration
Miriam Brown-Lam
Principal Agency FOIA Officer
300 E Street, S.W.
Washington, D.C. 20546
telephone number: (202) 358-0718
fax number: (202) 358-4345
e-mail address: foia@hq.nasa.gov
National Archives and Records Administration
Jay Olin
FOIA Officer
Office of the General Counsel
Room 3110
8601 Adelphi Road
College Park, MD 20740-6001
telephone number: (301) 837-2025
National Capital Planning Commission
Peter Coppelman
General Counsel
North Lobby, Suite 500
401 9th Street, N.W.
Washington, D.C. 20004
telephone number: (202) 482-7200
National Credit Union Administration
Linda Dent
Staff Attorney
1775 Duke Street
Alexandria, VA 22314
telephone number: (703) 518-6540
fax number: (703) 518-6569
e-mail address: foia@ncua.gov
National Endowment for the Arts
Monica Ashar
FOIA Officer
1100 Pennsylvania Avenue, N.W., Room 608
Washington, D.C. 20506

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telephone number: (202) 682-5007

fax number: (202) 682-5572
e-mail address: arts_foia@nea.gov
National Endowment for the Humanities
Heather C. Gottry
Deputy General Counsel
1100 Pennsylvania Avenue, N.W., Room 529
Washington, D.C. 20506
telephone number: (202) 606-8322
fax number: (202) 606-8600
e-mail address: foia@neh.gov
National Indian Gaming Commission
Jeannie McCoy
FOIA/PA Officer
Suite 9100
1441 L Street, N.W.
Washington, D.C. 20005
telephone number: (202) 632-7003
fax number: (202) 632-7066
National Labor Relations Board
Jacqueline A. Young
Assistant General Counsel
Room 10612
1099 14th Street, N.W.
Washington, D.C. 20570
telephone number: (202) 273-3840
National Mediation Board
Timothy Sweeney
Paralegal Specialist
1301 K Street, N.W., Suite 250 East
Washington, D.C. 20572
telephone number: (202) 692-5040
fax number: (202) 692-5085
National Science Foundation
Leslie A. Jensen
FOIA Officer, Room 1265
Office of the General Counsel
4201 Wilson Boulevard
Arlington, VA 22230
telephone number: (703) 292-8060
fax number: (703) 292-9041
e-mail address: foia@nsf.gov
National Transportation Safety Board
Melba D. Moye
FOIA Officer
490 L'Enfant Plaza East, S.W.
Washington, D.C. 20594
telephone number: (202) 314-6551
fax number: (202) 314-6132
Nuclear Regulatory Commission
Donna Sealing
FOIA/PA Officer
Washington, D.C. 20555
telephone number: (301) 415-7169
fax number: (301) 415-5130
e-mail address: foia@nrc.gov
Occupational Safety and Health Review Commission
Jennifer Marr

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USDOJ: FOIA: Principal FOIA Contacts at Federal Agencies

Attorney-Advisor
1120 20th Street, N.W., 9th Floor
Washington, D.C. 20036-3419
telephone number: (202) 606-5410
Office of the Director of National Intelligence
John F. Hackett
Director, Information Management Office
Washington, D.C. 20511
telephone number: (703) 482-1707
Office of Government Ethics
Elaine Newton
Attorney-Advisor
1201 New York Avenue, N.W., Suite 500
Washington, D.C. 20005-3917
telephone number: (202) 482-9265
fax number: (202) 482-9237
Office of Navajo and Hopi Indian Relocation
Lawrence A. Ruzow
Attorney-FOIA/Privacy Act Officer
201 E. Birch Avenue
P.O. Box KK
Flagstaff, AZ 86002
telephone number: (928) 779-2721
fax number: (928) 774-1977
Office of Personnel Management
Tanya Bennett
FOIA Public Liaison
Room 5415
1900 E Street, N.W.
Washington, D.C. 20415
telephone number: (202) 606-1153
fax number: (202) 418-3251
e-mail address: foia@opm.gov
Office of Special Counsel
Christopher M. Kurt
FOIA/PA Specialist
1730 M Street, N.W., Suite 201
Washington, D.C. 20036-4505
telephone number: (202) 254-3600
Overseas Private Investment Corporation
Nichole Cadiente
Administrative Counsel
1100 New York Avenue, N.W.
Washington, D.C. 20527
telephone number: (202) 336-8418
fax number: (202) 408-0297
e-mail address: info@opic.gov
Peace Corps
Allison Tanaka
FOIA/Privacy Act Specialist
1111 20th Street, N.W.
Washington, D.C. 20526-0001
telephone number: (202) 692-1236
fax number: (202) 692-1385
e-mail address: foia@peacecorps.gov
Pension Benefit Guaranty Corporation
E. William FitzGerald
Disclosure Officer, Room 240

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USDOJ: FOIA: Principal FOIA Contacts at Federal Agencies

1200 K Street, N.W.

Washington, D.C. 20005
telephone number: (202) 326-4040
Postal Regulatory Commission
Ruth Abrams
Secretary
Suite 200
901 New York Avenue, N.W.
Washington, D.C. 20268
telephone number: (202) 789-6840
fax number: (202) 789-6886
Railroad Retirement Board
Steven Bartholow
General Counsel
844 Rush Street
Chicago, IL 60611
telephone number: (312) 751-4935
fax number: (312) 751-7102
Securities and Exchange Commission
Celia Winter
FOIA/Privacy Act Branch Chief
Mail Stop 5100
100 F Street, N.E.
Washington, D.C. 20549
telephone number: (202) 551-7900
fax number: (202) 772-9337
e-mail address: foia/pa@sec.gov
Selective Service System
Paula A. Sweeney
FOIA Officer
1515 Wilson Boulevard
Arlington, VA 22209-2425
telephone number: (703) 605-4100
fax number: (703) 605-4106
Small Business Administration
Lisa Babcock
Chief, Office of FOI/PA
409 3rd Street, S.W.
Washington, D.C. 20416
telephone number: (202) 401-8203
fax number: (202) 205-7059
e-mail address: foia@sba.gov
Social Security Administration
Jonathan Cantor
FOIA Office, Room 3-A-6 Operations
6401 Security Boulevard
Baltimore, MD 21235
telephone number: (410) 966-6645
fax number: (410) 966-4304
Special Inspector General for Iraq Reconstruction
Lolita Mancheno-Smoak
FOIA Officer
Director Information Services
2011 Crystal Drive, Suite 1101
Arlington, VA 22202
telephone number: (703) 604-0487
Surface Transportation Board
Marilyn L. Levitt

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USDOJ: FOIA: Principal FOIA Contacts at Federal Agencies

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FOIA Officer
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Knoxville, TN 37902-1401
telephone number: (865) 632-6945
fax number: (865) 632-6901
e-mail address: foia@tva.gov

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June B. Brown
Associate General Counsel
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Washington, DC 20005
telephone number: (202) 673-3916
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Peter Vankevich
Supervisory Copyright Information Specialist
P.O. Box 70400
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telephone number: (202) 707-6800
fax number: (202) 707-6859
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Eric Meza
FOIA Officer and Public Liaison
Suite C100
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telephone number: (915) 832-4704
fax number: (915) 832-4196
e-mail address: ericmeza@ibwc.state.gov
United States International Trade Commission
Marilyn R. Abbott
Secretary to the Commission
500 E Street, S.W., Room 112A
Washington, D.C. 20436
telephone: (202) 205-2000
fax number: (202) 205-2104
United States Postal Service
Jane Eyre
Manager, Records Office
475 L'Enfant Plaza West, S.W.
Washington, D.C. 20260-5202
telephone number: (202) 268-2608
fax number: (202) 268-5353
United States Trade and Development Agency
Kendra Link
Assistant General Counsel
Suite 1600
1000 Wilson Blvd.
Arlington, VA 22209-3901
telephone number: (703) 875-4357
fax number: (703) 875-4009

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SAMPLE FOIA Request Tips & Tricks

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Making the FOIA Work for You

http://www.gwu.edu/~nsarchiv/nsa/foia/tips.html

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Making the FOIA Work for You

FOIA Introduction
FOIA Basics
NEW - Effective FOIA Requesting for
Everyone - A National Security Archive
Guide
Making the FOIA Work for You
Follow a Request Through the FOIA
Process (pdf)
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Noteworthy News Stories Made Possible
by FOIA Documents
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Redeclassification (PowerPoint - 14 MB)

1) Do your RESEARCH before you file a FOIA request.

A FOIA request should be a research tool of last resort; it can take
a long time to obtain records and can be costly.
Ascertain whether the documents you are seeking already are
publicly available. Review agency websites, including their online
FOIA reading rooms. For documents dated prior to the
mid-1970's, contact the National Archives and keep in mind that
Congress is a natural source for material on public policy. If you are
associated with a research organization such as a university, that
subscribes to electronic research databases, search for journals
that reference pertinent documents, or databases that store
declassified documents such as http://nsarchive.chadwyck.com/.
Finally, contact public interest groups or other organizations that
have interest in your topic. There are a number of sources for
already declassified federal government records.
Doing your research first will inform you as to the key events and
key decision-makers on your topic, help you pinpoint documents
and agencies in your requests, and keep you from requesting
material extraneous to your interest.
2) WRITE your request clearly; and be specific.
Overly broad requests are wasteful in time (yours, and the
government's) and resources (yours, and the government's).
Please keep in mind that agencies only are required to search for
documents under the FOIA, not create them. You cannot ask an
agency to do your research for you. Only if you are fairly certain
that a government agency will have documents should you send a
FOIA request.
Be specific: assume the FOIA officer is not familiar with your topic.
As many agencies perform computerized searches for documents,
use key words and phrases. For example, an agency may not be
able to search "escalation of tension," but be able to search
"military assistance." Also, provide accurate titles and dates, full
names, and pertinent news stories discussing the subject of your
request. In other words, assist the person in doing the search by
providing key items of information.
Keep your request brief, avoiding narratives, as they likely will
confuse the FOIA Officer. Don't write two-page supporting essays
for your request, as they will only create confusion for the FOIA
Officer.
To see sample FOIA requests click here.
3) TARGET your request.
In addition to researching your topic, research the government to
find out where to send the request.
Send your request to the agency most likely to hold the records.
While the Department of State and the CIA have one centralized
FOIA office, the military branches have individual FOIA offices in
each component. The FBI, among others, maintains records at
headquarters and in field offices. Contacting the main agency FOIA
office to determine the location of records can save delays in your
responses; at a minimum, they may agree to forward your
request to the correct location. Also review the agency's FOIA
reference guide and handbook on its website for information on
how to target your request.
It is worth your time to find out exactly which components of
agencies maintain the documents you are requesting. It will save
time (weeks, months or even years) in referrals.
4) Establish and maintain CONTACT with the agency.

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http://www.gwu.edu/~nsarchiv/nsa/foia/tips.html

Agency response letters often identify a point-of-contact or case

officer for your FOIA request. If not, after a reasonable period of
time, call and check on the status of your request and identify the
case officer. Your effort will indicate to the FOIA officer your
continued interest in the request. The FOIA officer can then advise
you of estimated fees; can seek clarification of your request; can
advise you of delays; and can advise you if extraneous material is
located.
Don't harass your FOIA officer with too many calls or letters. Yours
is not the only case the agency has received. Also, consider that at
some agencies program (or policy) officers may also handle FOIA
requests, and your request is just one of many tasks they must
undertake.
Note all substantive telephone contacts in addition to the agency
correspondence you receive.
5) Stay ADMINISTRATIVELY accurate. Understand the FOIA Statutes.
Carefully follow the agency's own FOIA regulations and instructions
in correspondence. For example, while only some agencies may
require you to submit their denial letters with your appeal, it is
helpful to include them anyway. Lack of correspondence may at
best delay their response, and at worst allow them to not consider
an appeal. Also, as requests can become complex and
documentation voluminous, it is helpful to create a filing or tracking
system for your own use.
Timeframes. You cannot appeal an agency's lack of initial response
until the agency has had 20 business days to respond. Also,
agencies may, at their discretion, accept your appeal for a denial of
documents beyond their appeal period. Finally, the agency has 20
business days to decide your appeal before you may file a
complaint in federal court.
6) DELAYS in processing requests, while frustrating, can be expected.
Delays in processing FOIA requests occur at many agencies, and
are endemic at a handful of agencies. Most agency delays are
short, perhaps only a week or two. However, agencies that handle
national security information have delays ranging from a few
months to several years. These agencies maintain heavy backlogs
due primarily to the time-and-resource consuming review of
classified material. Additionally, the number of classified documents
increased dramatically in the 1980's. Also, in some instances,
various agencies can have input into a single classified document.
Delays are exacerbated by the fact that, for most agencies, FOIA is
not an agency priority -- budget or otherwise -- meaning delays
will continue to plague the system.
7) Be REASONABLE.
Consider the FOIA officer receiving your request. A well-written
request, helpful contact, and a non-confrontational manner on
your end will only aid the processing of your request. The FOIA
officer is often faced with bureaucratic or ideological intransigence
within his or her own agency. Pestering your FOIA contact at an
agency may mean jeopardizing a helpful source of information.
Don't send frivolous letters or file pointless appeals; they will delay
processing of yours - and others' - requests. Contact with the
FOIA officer will help you ascertain what is a useful exercise.

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Terms and conditions for use of materials found on this

website.

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SAMPLE FOIA Request

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National Secturity Archive / FOIA SAMPLE REQUESTS AND APPEAL...

http://www.gwu.edu/~nsarchiv/nsa/foia_requestsA.html

Agency Head [or Freedom of Information Act Officer]

Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Request
Dear _____________:
This is a request under the Freedom of Information Act.
I request that a copy of the following documents [or documents
containing the following information] be provided to me:
[identify the documents or information as specifically as possible.]
In order to help to determine my status to assess fees, you should know
that I am [insert a suitable description of the requester and the
purpose of the request.]
[Sample requester descriptions:
a representative of the news media affiliated with the ________________
newspaper (magazine, television station, etc.), and this request is
made as part of a news gathering and not for commercial use.
affiliated with an educational or noncommercial scientific institution,
and this request is made for a scholarly or scientific purpose and not for
commercial use.
an individual seeking information for personal use and not for commercial use.
affiliated with a private corporation and am seeking information for use in the
company's business.]
[Optional] I am willing to pay fees for this request up to a maximum of $____.
If you estimate that the fees will exceed this limit, please inform me first.
[Optional] I request a waiver of all
requested information to me is in the
significantly to public understanding
and is not primarily in my commercial

fees for this request. Disclosure of the

public interest because it is likely to contribute
of the operations or activities of the government
interest. [Include a specific explanation.]

Thank you for your consideration of my request.

Sincerely,
Name Address City, State, Zip Code Telephone Number [Optional]

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SAMPLE FOIA Appeal Letter

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FOIA SAMPLE REQUESTS AND APPEAL LETTERS

http://www.gwu.edu/~nsarchiv/nsa/foia_requestsB.html

Agency Head or Appeal Officer

Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Appeal
Dear _____________:
This is an appeal under the Freedom of Information Act.
On [date], I requested documents under the Freedom of Information Act. My request
was assigned the following identification number:________. On [date], I received a
response to my request in a letter signed by[name of official]. I appeal the denial of
my request.
[Optional] The documents that were withheld must be disclosed under the FOIA
because....
[Optional] I appeal the decision to deny my request for a waiver of fees. I believe that I
am entitled to a waiver of fees. Disclosure of the documents I requested is in the public
interest because the information is likely to contribute significantly to public
understanding of the operations or activities of government and is not primarily in my
commercial interest. [Provide details]
[Optional] I appeal the decision to require me to pay review costs for this request.
not seeking the documents for commercial use. [Provide details]

I am

[Optional] I appeal the decision to require me to pay search charges for this request.
I am a reporter seeking information as part of a news gathering and not for commercial use.
Thank you for your consideration of this appeal.
Sincerely,

Name
Address
City, State, Zip Code
Telephone Number [Optional]

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SAMPLE Spoliation Rules Listing

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http://www.mwl-law.com/
CM/Resources/Spoliationin-all-50-states.pdf

SPOLIATION OF EVIDENCE IN ALL 50 STATES

LAST UPDATED 4/2/2008
In 1984, California was the first state to recognize the tort of spoliation. See Smith v. Superior Ct., 151
Cal.App.3d 491, 198, Cal.Rptr. 829, 831 (Cal. 1984). However, the majority of jurisdictions that have
subsequently examined the issue have declined to create or recognize such a tort. Only Alabama,
Alaska, Florida, Indiana, Kansas, Louisiana, Montana, New Mexico, Ohio, and West Virginia have
explicitly recognized some form of an independent tort action for spoliation. California overruled its
precedent, and declined to recognize first-party or third-party claims for spoliation. See Temple Cmty.
Hosp. v. Superior Ct., 20 Cal.4th 464, 84 Cal.Rptr.2d 852, 976 P.2d 223, 233 (Cal. 1999); Cedars-Sinai
Med. Center v. Superior Ct., 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511, 521 (Cal. 1998).
Generally those states that have recognized or created the tort of spoliation in some form, limit such an
action to third-party spoliation of evidence related to pending or actual litigation. First-party spoliation
claims are those claims for destruction or alteration of evidence brought against parties to underlying
litigation. Conversely, third-party spoliation claims are those destruction or alteration of evidence claims
against non-parties to underlying litigation. Moreover, most of these states generally hold that thirdparty spoliator must have had a duty to preserve the evidence before liability can attach. The majority of
states that have examined this issue have preferred to remedy spoliation of evidence and the resulting
damage to a partys case or defense, through sanctions or by giving adverse inference instructions to
juries.
Sanctions can include the dismissal of claims or defenses, preclusion of evidence, and the granting of
summary judgment for the innocent party. The following is a compendium of decisions for the states
that have examined the issue of spoliation.

ALABAMA
DEFINITION:
Alabama defines spoliation as: an attempt by a party to suppress or destroy material evidence
favorable to the partys adversary. May v. Moore, 424 So.2d 596, 603 (Ala. 1982); Wal-Mart Stores,
Inc. v. Goodman, 789 So.2d 166, 176 (Ala. 2000).
THIRD-PARTY TORT:
Smith v. Atkinson, 771 So.2d 429, 438 (Ala. 2000), holds that spoliation may be a basis for a cause of
action where a third-party has negligently destroyed material evidence, but states that adverse
inference instruction and discovery sanctions are the remedy when spoliation is charged against an
opposing party. Smith established a test to determine when a party could be liable for negligent
spoliation of evidence. Smith, at 771 So.2d at 432, analyzes the concepts of duty, breach, and
proximate cause. With respect to proximate cause, it held: in order for a plaintiff to show proximate
cause, the trier of fact must determine that the lost or destroyed evidence was so important to the
plaintiffs claim in the underlying action that without that evidence the claim did not survive or would not
have survived a motion for summary judgment under Rule 56, Ala. R. Civ. P. 771 So.2d at 434.
In order for a defendant to show proximate cause, the trier of fact must determine that the lost or
destroyed evidence was so important to the defense in the underlying action that without that evidence
the defendant had no defense to liability. Id.
ADVERSE INFERENCE:
If the trier of fact finds a party guilty of spoliation, it is authorized to presume or infer that the missing
evidence reflected unfavorably on the spoliators interest. McCleery v. McCleery, 200 Ala. 4, 75 So. 316
(Ala. 1917). Spoliation is sufficient foundation for an inference of [the spoliators] guilt or negligence.
May v. Moore, 424 So.2d 596, 603 (Ala. 1982); see also Wal-Mart Stores, supra, 789 So.2d at 176;
Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 412 (Ala. 1995).
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SANCTIONS:
Spoliation can have special consequences, i.e., sanction under Rule 37, Ala. R. Civ. P., when a party
frustrates a discovery request by willfully discarding critical evidence subject to a production request.
Iverson v. Xpert Tune, Inc., 553 So.2d 82 (Ala. 1989). In such a situation, where the plaintiff is guilty of
spoliation, the sanction of dismissal of the claim may be warranted. Iverson, supra. Dismissal for failure
to comply with a request for production may be warranted even when there was no discovery pending
or even litigation underway at the time the evidence in question was discarded or destroyed. Vesta Fire
Ins. Corp. v. Milam & Co. Const., Inc., 901 So.2d 84, 93 -94 (Ala. 2004).

ALASKA
FIRST-PARTY INTENTIONAL TORT:
In Hazen v. Anchorage, 71 P.2d 456 (Alaska 1986), the plaintiff was permitted to allege spoliation
against a municipal prosecutor, who was not a party to the underlying civil suit, but was an agent of the
municipality (Anchorage). Furthermore, in Nichols v. State Farm & Cas. Co., 6 P.3d 300 (Alaska 2000),
the Court implied that spoliation of evidence by a partys agent creates a claim for first-party spoliation.
Additionally, the Hazen court permitted the plaintiff to bring a claim against the individual police officers
involved in her arrest (third-party spoliation).
THIRD-PARTY INTENTIONAL TORT:
In, Nichols the Alaska Supreme Court explicitly recognized intentional third-party spoliation of evidence
as a tort. These previous holdings were relied on by the Alaska Supreme Court in Hibbits v. Sides, 34
P.3d 327 (Alaska 2001). In Hibbits, the Court held that when alleging third-party spoliation, a plaintiff
must plead and prove that the defendant intended to interfere in his civil suit.

ARIZONA
INDEPENDENT TORT ACTION:
Arizona does not recognize an independent claim for either negligent or intentional spoliation of
evidence. Tobel v. Travelers Ins. Co., 988 P.2d 148, 156 (Ariz. App. 1999).
SANCTIONS/ADVERSE INFERENCE:
Generally speaking, innocent failure to preserve evidence does not warrant sanction or dismissal.
Souza v. Fred Carriers Contracts, Inc., 955 P.2d 3, 6 (Ariz. App. 1997). However, litigants have a duty
to preserve evidence which they know or reasonably should know is relevant or reasonably calculated
to lead to the discovery of admissible evidence and is reasonably likely to be requested during
discovery or is the subject of a pending discovery request. Id.
Issues concerning destruction of evidence and appropriate sanctions therefore should be decided on a
case by case basis, considering all relevant factors. Id. In doing so, the court noted the destruction of
potentially relevant evidence occurs along a continuum of fault and the resulting penalties should vary
correspondingly. Id. quoting Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir. 1988).

ARKANSAS
DEFINITION:
In Arkansas, spoliation is defined as the intentional destruction of evidence and when it is established,
[the] fact-finder may draw [an] inference that [the] evidence destroyed was unfavorable to [the] party
responsible for its action. Union Pacific R.R. Co. v. Barber, 356 Ark. 268, 298, 149 S.W.3d 325, 345
(Ark. 2004).
2
139

ADVERSE INFERENCE INSTRUCTION:

Spoliation is the intentional destruction of evidence; when it is established, the fact-finder may draw an
inference that the evidence destroyed was unfavorable to the party responsible for its spoliation. Tomlin
v. Wal-Mart Stores, Inc., 81 Ark. App. 198, 100 S.W.3d 57 (Ark. 2003). An aggrieved party can request
that a jury be instructed to draw a negative inference against the spoliator. Id.; Superior Federal Bank v.
Mackey, 84 Ark. App. 1, 25-26, 129 S.W.3d 324, 340 (Ark. 2003).
SANCTIONS:
Arkansas rules of civil procedure, professional conduct and criminal code are also available as
sanctions both against attorneys and others who engage in spoliation of evidence. Goff v. Harold Ives
Trucking Co., Inc., 27 S.W.3d 387, 391 (Ark. 2000).

CALIFORNIA
FIRST-PARTY TORT FOR INTENTIONAL SPOLIATION:
The California Supreme Court has held that there is no tort for the intentional spoliation of evidence by
a party to the cause of action to which the spoliated evidence is relevant [i.e., first-party spoliation], in
cases in which ... the spoliation victim knows or should have known of the alleged spoliation before the
trial or other decision on the merits of the underlying action. Cedars-Sinai Med. Ctr. v. Superior Ct., 18
Cal.4th 1, 74 Cal.Rptr.2d 248, 258, 954 P.2d 511 (Cal. 1998).
THIRD-PARTY TORT FOR INTENTIONAL SPOLIATION:
The California Supreme Court has also held that there was no cause of action for intentional spoliation
of evidence by a third-party. Temple Cmty. Hosp. v. Sup. Ct., 20 Cal.4th 464, 84 Cal.Rptr.2d 852, 862,
976 P.2d 223 (Cal. 1999).
NO TORT OF NEGLIGENT SPOLIATION:
The California Court of Appeal extended these decisions to preclude causes of action for negligent
spoliation by first or third parties. See Forbes v. County of San Bernardino, 101 Cal.App.4th 48, 123
Cal.Rptr.2d 721, 726-27 (Cal. 2002).
SANCTIONS:
California recognizes the availability of standard non-tort remedies to punish and deter for the
destruction of evidence. Cedars-Sinai Medical Center v. Superior Court, 954 P.2d 511, 517 (Cal. 1998).
The available remedies may include: (1) The evidentiary inference that the evidence which one party
has destroyed or rendered unavailable was unfavorable to that party. See California Evidence Code
413 (evidence which one party has destroyed or rendered unavailable was unfavorable to that party.);
(2) Discovery sanctions under California Code of Civil Procedure 2023; (3) Disciplinary action against
the attorneys. See Cal. Rules Prof. Conduct, Rule 5-220 and Cal. Bus. & Prof. Code 6077 and 6106;
(4) Criminal penalties for destruction of evidence under California Penal Code 135 (criminalizes the
spoliation of evidence, which creates an effective deterrent against this wrongful conduct).
POST JUDGMENT TORT OF SPOLIATION:
California courts have not addressed the issue whether a tort for intentional spoliation of evidence
exists in cases of first-party spoliation in which the spoliation victim neither knows nor should have
known of the spoliation until after a decision on the merits of the underlying action. Cedars-Sinai Med.
Ctr., 74 Cal.Rptr.2d at 258 n. 4, 954 P.2d 511 (Cal. 1998). As a consequence, this court must decide
this issue as it believes the California Supreme Court would do. HS Servs., Inc. v. Nationwide Mut. Ins.
Co., 109 F.3d 642, 644 (9th Cir. 1997).
The Federal District Court in Central California concluded that the California Supreme Court would not
recognize an intentional spoliation of evidence tort where the spoliation victim did not know nor should
3
140

have known of the spoliation until after a decision on the merits of the underlying action. See Roach v.
Lee, 369 F.Supp.2d 1194, 1203 (C.D. Cal. 2005).

COLORADO
ADVERSE INFERENCE:
Colorado recognizes adverse inference as a sanction for intentional destruction of evidence. The state
of mind of the party that destroys the evidence is an important consideration in determining whether
adverse inference is the appropriate sanction. In addition, in order to remedy the evidentiary imbalance
created by the loss or destruction of the evidence, an adverse inference may be appropriate even in the
absence of a showing of bad faith. Id. Special caution must be exercised to ensure that the inference is
commensurate with the information that was reasonably likely to have been contained in the destroyed
evidence. Pfantz v. K-Mart Corp., 85 P.3d 564 (Colo. App. 2003).

CONNECTICUT
ADVERSE INFERENCE:
Although Connecticut has recognized that an adverse inference may be drawn when relevant evidence
is intentionally destroyed, the courts have also recognized as a general rule that the inference is a
permissive one. Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 306, 823 A.2d 1184,
1197 (Conn. 2003). An adverse inference may be drawn against a party who has destroyed evidence
only if the trier of fact is satisfied that the party who seeks the adverse inference has proven three
things: (1) the spoliation must have been intentional; (2) the destroyed evidence must be relevant to the
issue or matter for which the party seeks the inference; and (3) the party who seeks the inference must
have acted with due diligence with respect to the spoliated evidence. Beers v. Bayliner Marine Corp.,
236 Conn. 769, 777-78, 675 A.2d 829 (Conn. 1996).

DELAWARE
TORT OF SPOLIATION:
Delaware declines to recognize a separate cause of action for negligent or intentional spoliation. See
Lucas v. Christiana Skating Center, Ltd., 722 A.2d 1247, 1250 (Del. 1998).
SANCTIONS:
Criminal penalty: 11 Del. C. 1269(2), Tampering with physical evidence, states that a person is guilty
of tampering with physical evidence when ... believing that certain physical evidence is about to be
produced or used in an official proceeding or a prospective official proceeding, and intending to prevent
its production or use the person suppresses it by any act of concealment, alteration or destruction, or
by employing force, intimidation or deception against any person.
ADVERSE INFERENCE:
Where a litigant intentionally suppresses or destroys pertinent evidence, an inference arises that
evidence would be unfavorable to his case. Lucas v. Christiana Skating Center, Ltd., 722 A.2d 1247,
1250 (Del. 1998).

FLORIDA
NO INDEPENDENT CAUSE OF ACTION FOR FIRST-PARTY SPOLIAITON
The Florida Supreme Court determined in Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005),
that the remedy against a first-party defendant for spoliation of evidence is not an independent cause of
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action for spoliation of evidence. This holding clarified a split regarding the tort of spoliation between the
Third and Forth District Courts of Appeals.
THIRD-PARTY TORT OF SPOLIATION:
The holding in Marino is limited to first-party spoliation. Florida Appellate Courts have recognized an
independent claim for spoliation against third-parties. Townsend v. Conshor, Inc., 832 So.2d 166, 167
(Fla. Dist. Ct. App. 2002); Jost v. Lakeland Regl Med. Ctr., Inc., 844 So.2d 656 (Fla. 2d DCA 2003).
Third-party spoliation claims, however, do not arise until the underlying action is completed. Lincoln Ins.
Co. v. Home Emergency Servs., Inc., 812 So.2d 433, 434-435 (Fla. Dist. Ct. App. 2001). In order to
establish a cause of action for spoliation, a party must show: (1) the existence of a potential civil action,
(2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3)
destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal
relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.
Jost v. Lakeland, 844 So. 2d 656, 657-685 (Fla. 2d DCA 2003).
SANCTIONS:
In Public Health Trust v. Valcin, 507 So.2d 596, 599 (Fla. 1987), the court held that when evidence was
intentionally lost, misplaced, or destroyed by one party, trial courts were to rely on sanctions found in
Fla. R. Civ. P. 1.380(b)(2), and that a jury could well infer from such a finding that the records would
have contained indications of negligence. If the negligent loss of the evidence hinders the other partys
ability to establish a prima facie case, then a rebuttable presumption of negligence for the underlying
tort will be applied. This presumption and sanction were upheld in Martino v. Wal-Mart Stores, Inc., 908
So.2d 342, 346-47 (Fla. 2005).

GEORGIA
THIRD-PARTY TORT OF SPOLIATION:
The Georgia Court of Appeals declined to recognize an independent third-party tort for spoliation of
evidence. Owens v. Am. Refuse. Sys., Inc., 244 Ga.App. 780, 536 S.E.2d 782 (Ga. 2000).
FIRST-PARTY TORT OF SPOLIATION
In Gardner v. Blackston, 185 Ga.App. 754, 365 S.E.2d 545 (Ga. 1988), the court stated in dicta that
Georgia law does not recognize spoliation of evidence as a separate tort. In Sharpnack v. Hoffinger,
231 Ga.App. 829, 499 S.E.2d 363 (Ga. 1998), the court again reviewed the issue, but since the court
had already determined that the plaintiff in the case had assumed the risk of his injury, he could not
establish a meaningful link between his underlying claims and the alleged spoliation. Therefore, the
appellate court affirmed the grant of summary judgment.
SANCTIONS:
Georgia courts do have the authority to impose sanctions to remedy the prejudice from the spoliation of
evidence. R.A. Siegel Co. v. Bowen, 539 S.E.2d 873, 877 (Ga. Ct. App. 2000). Sanctions range from
adverse inference, dismissal and exclusion of evidence. Chapman v. Auto Owners Ins. Co., 469 S.E.2d
783, 784 (Ga. Ct. App. 1996); see also, Cavin v. Brown, 538 S.E.2d 802, 804 (Ga. Ct. App. 2000).
Courts will look to a variety of factors in determining which sanctions to impose, including: (1) whether
the party seeking sanctions was prejudiced as a result of the destruction of the evidence; (2) whether
the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the party that
destroyed the evidence acted in good or bad faith; and (5) the potential for abuse of expert testimony
about the evidence was not excluded. Bridgestone/Firestone North Am. Tire, L.L.C. v. Campbell, 574
S.E.2d 923, 926 (Ga. Ct. App. 2002); Chapman, 469 S.E.2d at 785.

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HAWAII
TORT OF SPOLIATION:
Hawaii courts have not resolved whether Hawaii law would recognize a tort of spoliation of evidence.
See Matsuura v. E.I. du Pont de Nemours and Co., 102 Haw. 149, 168, 73 P.3d 687, 706 (Haw. 2003).

IDAHO
TORT OF SPOLIATION:
Idaho Courts have discussed this tort, but have not formally recognized it. In Yoakum v. Hartford Fire
Ins. Co., 129 Idaho 171, 177-178, 923 P.2d 416, 422-423 (Idaho 1996), the court found that assuming
Idaho law would recognize the tort of spoliation, it would require the willful destruction or concealment
of evidence. In this particular case, the court found that the plaintiffs had not demonstrated that the
defendants destroyed any evidence which would justify holding them liable for this tort.
EVIDENTIARY RULES/SANCTIONS:
Idaho courts have recognized the spoliation doctrine as a form of admission by conduct. By resorting
to wrongful devices, the party is said to provide a basis for believing that he or she thinks the case is
weak and not to be won by fair meansAccordingly, the following are considered under this general
category of admissions by conduct:destruction or concealment of relevant documents or objects.
Courtney v. Big O Tires, Inc., 139 Idaho 821, 824, 87 P.3d 930, 933 (Idaho 2003), citing McCormick On
Evidence, 4th Ed. 265, pp. 189-94 (1992) As an admission, the spoliation doctrine only applies to the
party connected to the loss or destruction of the evidence. Acts of a third person must be connected to
the party, or in the case of a corporation to one of its superior officers, by showing that an officer did the
act or authorized it by words or other conduct. Furthermore, the merely negligent loss or destruction of
evidence is not sufficient to invoke the spoliation doctrine. Moreover, the circumstances of the act must
manifest bad faith. Mere negligence is not enough, for it does not sustain the inference of
consciousness of a weak case. Id.
There may certainly be circumstances where a partys willful, intentional, and unjustifiable destruction of
evidence that the party knows is material to pending or reasonably foreseeable litigation may so
prejudice an opposing party that sanctions such as those listed in Rule 37(b) of the Idaho Rules of Civil
Procedure are appropriate. Id.

ILLINOIS
TORT OF SPOLIATION:
The Supreme Court of Illinois has held that a party confronted with the loss or destruction of relevant,
material evidence at the hands of an opponent may either: (1) seek dismissal of his opponents
complaint under Rule 219(c); or (2) bring a claim for negligent spoliation of evidence. The mode of relief
most appropriate will depend upon the opponents culpability in the destruction of the evidence.
TORT OF NEGLIGENT SPOLIATION:
The Supreme Court of Illinois has declined to recognize spoliation of evidence as an independent tort
and instead held that a spoliation claim can be stated under existing negligence principles. Dardeen v.
Kuehling, 213 Ill.2d 329, 335, 821 N.E.2d 227, 231, 290 Ill. Dec. 176, 180 (Ill. 2004). In order to state a
negligence claim, a plaintiff must allege that the defendant owed him a duty, that the defendant
breached that duty, and that the defendants breach proximately caused the plaintiff damages. The
Court tailored the duty element to spoliation claims: The general rule is that there is no duty to
preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract,
a statute or another special circumstance. Moreover, a defendant may voluntarily assume a duty by
affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due care to preserve
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evidence if a reasonable person in the defendants position should have foreseen that the evidence
was material to a potential civil action. Id. This claim requires conduct that is deliberate [or]
contumacious or [evidences an] unwarranted disregard of the courts authority and should be
employed only as a last resort and after all the courts other enforcement powers have failed to
advance the litigation. Adams v. Bath and Body Works, Inc., 358 Ill.App.3d 387, 392, 830 N.E.2d 645,
651-655, 294 Ill. Dec. 233, 239 - 243 (Ill. App. 1 Dist. 2005).
SANCTIONS:
Sanctions for spoliation require mere negligence, the failure to foresee that the [destroyed] evidence
was material to a potential civil action. Dardeen, 213 Ill.2d at 336, 290 Ill. Dec. 176, 821 N.E.2d 227.
Rule 219(c) permits sanctions only where a party unreasonably fails to comply with a discovery order
and that a party who had nothing to do with the destruction of evidence cannot be said to have
unreasonably failed to comply with a discovery order because [b]efore noncompliance can be
unreasonable, a party must have been in a position to comply.

INDIANA
TORT OF SPOLIATION:
First-party If an alleged tortfeasor negligently or intentionally destroys or discards evidence that is
relevant to a tort action, the plaintiff in the tort action does not have an additional independent
cognizable claim against the tortfeasor for spoliation of evidence. Gribben v. Wal-Mart Stores, Inc., 824
N.E.2d 349, 355 (Ind. 2005).
THIRD-PARTY TORT OF SPOLIATION:
Negligent or intentional spoliation of evidence is actionable as a tort only if the party alleged to have lost
or destroyed the evidence owed a duty to the person bringing the spoliation claim to have preserved it.
Glotzbach, CPA v. Froman, 827 N.E.2d 105, 108 (Ind. App. 2005). To determine the existence of a duty
Indiana courts balance three factors: (1) the relationship between the parties; (2) the reasonable
foreseeability of harm to the person injured; and (3) public policy concerns. Id. This balancing test is to
be used only in those instances where the element of duty has not already been declared or otherwise
articulated. Id. Indiana Code 35-44-3-4 provides that a person whoalters, damages, or removes
any record, document, or thing, with intent to prevent it from being produced or used as evidence in any
official proceeding or investigationcommits obstruction of justice. This is a class D felony.
SANCTIONS:
Indiana Courts may also sanction parties, but not third parties, for the spoliation of evidence through:
(1) evidentiary inferences that the spoliated evidence was unfavorable to the responsible party; (2)
sanctions for discovery violation under Indiana Trial Rule 37(B), which authorizes courts to respond
with sanctions which include among others, ordering that designated facts be taken as established,
prohibiting the introduction of evidence, dismissal of all or part of an action, rendering judgment by
default against a disobedient party, and payment of reasonable expenses including attorneys fees; and
(3) discipline for spoliating attorneys under Indiana Rules of Professional Conduct.

IOWA
SANCTIONS:
Evidence of spoliation may allow an inference that a party who destroys a document with knowledge
that it is relevant to litigation is likely to have been threatened by the document. Lynch v. Saddler, 656
N.W.2d 104, 111 (Iowa 2003). Such inference may only be drawn when the destruction of relevant
evidence was intentional, as opposed to merely negligent or the evidence was destroyed as the result
of routine procedure. Id. However, such inference does not amount to substantive proof and cannot
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take the place of proof of a fact necessary to the other partys cause. Smith v. Shagnastys, Inc., 2004
WL 434160 (Iowa App. 2004). Interestingly, the evidentiary inference is imposed both for evidentiary
and punitive reasons. Phillips v. Covenant Clinic, 625 N.W.2d 714, 721 (Iowa 2001). Adverse inference
instructions should be utilized prudently and sparingly. Lynch v. Saddler, supra.

KANSAS
TORT OF SPOLIAITION:
In Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (Kan. 1987), the Kansas
Supreme Court considered the certified question of whether Kansas would recognize a common law
tort action for intentional interference with a civil action by spoliation of evidence under the facts
presented. The Supreme Court of Kansas concluded that absent some independent tort, contract,
agreement, voluntary assumption of duty, or some special relationship of the parties, the new tort of
spoliation of evidence should not be recognized in Kansas under the facts presented. Id at 215, 734
P.2d at 1177. Consequently, the U.S. District Court for Kansas held that the Supreme Court of Kansas
would recognize the tort of spoliation under some limited circumstances. Foster v. Lawrence Memorial
Hosp., 809 F. Supp. 831, 838 (Kan. 1992).
ADVERSE INFERENCE INSTRUCTION:
Kansas law generally provides that failure to throw light upon an issue peculiar with any parties own
knowledge or reach raises a presumption open to explanation, of course, that the concealed
information was unfavorable to him. Kansas utilizes a pattern jury instruction, K.P.J.I. 102.73,
borrowed from the Illinois Jury Instruction for Inferences Arising from Failure to Produce Evidence.
The applicable jury instruction, K.P.J.I. 102.73, provides: If a party to [the] case has failed to offer
evidence within his power to produce, you may infer that the evidence would have been adverse to that
party, if you believe each of the following elements: (1) The evidence was under the control of the party
and could have been produced by the exercise of reasonable diligence. (2) The evidence was not
equally available to an adverse party. (3) A reasonably prudent person under the same or similar
circumstances would have offered if (he) (she) believed it to be favorable to him. (4) No reasonable
excuse for the failure has been shown.

KENTUCKY
TORT OF SPOLIATION:
Kentucky does not recognize separate torts for either first-party or third-party spoliation of evidence.
Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997).
SANCTIONS/ADVERSE INFERENCE:
Rather, the court counteracts a partys deliberate destruction of evidence through evidentiary rules, civil
sanction, and missing evidence instructions. Id.

LOUISIANA
TORT OF SPOLIATION:
Louisiana courts have recognized the right of an individual to institute a tort action against someone
who has impaired the partys ability to institute or prove a civil claim due to negligent or intentional
spoliation of evidence. See Guillory v. Dillards Dept. Store, Inc., 777 So.2d 1, 3 (La. App. 3rd Cir. 2000);
McCool v. Beauregard Memorial Hosp., 814 So.2d 116, 118 (La. App. 3rd Cir. 2002). A plaintiff
asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally
destroyed evidence. Desselle v. Jefferson Hosp. Dist. No. 2, 887 So.2d 524, 534 (La. App. 2004).
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Allegations of negligent conduct are insufficient. Quinn v. RISO Investments, Inc., 869 So.2d 922 (La.
App. 2004). Where suit has not been filed and there is no evidence that a party knew suit would be filed
when the evidence was discarded, the theory of spoliation of evidence does not apply. Desselle v.
Jefferson Hosp. Dist. No. 2, 887 So.2d at 534.
ADVERSE INFERENCE:
The tort of spoliation of evidence has its roots in the evidentiary doctrine of adverse presumption,
which allows a jury instruction for the presumption that the destroyed evidence contained information
detrimental to the party who destroyed the evidence unless such destruction is adequately explained.
Guillory v. Dillards Dept. Store, Inc., 777 So.2d 1, 3 (La. App. 3rd Cir. 2000).

MAINE
TORT OF SPOLIATION:
The Maine Law Court has apparently never recognized such a cause of action, for spoliation of
evidence. Gagne v. D.E. Jonsen, Inc., 298 F.Supp.2d 145, 147 (D. Me. 2003); citing Butler v. Mooers,
2001 WL 1708836 (Me. Super., June 13, 2001), at 1. In addition, federal courts sitting in Maine have
identified spoliation as a doctrine intended to rectify any prejudice the non-offending party may have
suffered as a result of the loss of evidence and to deter any future conduct, particularly deliberate
conduct, leading to such loss of evidence. Driggin v. American Sec. Alarm Co., 141 F.Supp.2d 113,
120 (D. Me. 2000).
SANCTIONS:
The remedy for spoliation of evidence is sanctions, including dismissal of the case, the exclusion of
evidence, or a jury instruction on the spoliation inference. Id. This view of the doctrine is not consistent
with the existence of an independent cause of action arising out of such deliberate conduct. Rather, the
injured party may seek sanctions that will affect its claims or defenses. See, e.g., Pelletier v.
Magnusson, 195 F.Supp.2d 214, 233-37 (D. Me. 2002); Elwell v. Conair, Inc., 145 F.Supp.2d 79, 87-88
(D. Me. 2001).

MARYLAND
ADVERSE INFERENCE/PRESUMPTION:
In Miller v. Montgomery County, 64 Md.App. 202, 214-15, 494 A.2d 761, cert. denied, 304 Md. 299, 498
A.2d 1185 (Md. 1985), Judge Bloom, writing for the Supreme Court of Maryland, explained the effect
spoilation of evidence might have on the spoliators case as follows: The destruction or alteration of
evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of
the inference being dependent upon the intent or motivation of the party. Unexplained and intentional
destruction of evidence by a litigant gives rise to an inference that the evidence would have been
unfavorable to his cause, but would not in itself amount to substantive proof of a fact essential to his
opponents cause. Under Miller, an adverse presumption may arise against the spoliator even if there is
no evidence of fraudulent intent. Anderson v. Litzenberg, 115 Md.App. 549, 559, 694 A.2d 150, 155
(Md. App. 1997). The presumption that arises from a partys spoilation of evidence cannot be used as a
surrogate for presenting evidence of negligence in a prima facie case.
SANCTIONS:
Maryland courts have condoned discovery sanctions as remedies for spoliation of evidence. See Klupt
v. Krongard, 728 A.2d 727, 738 (Md. Ct. Spec. App. 1999). The ultimate sanction of dismissal or default
when spoliation may be imposed when the spoliation involves: (1) a deliberate act of destruction; (2)
discoverability of the evidence; (3) an intent to destroy the evidence; (4) occurrence of the act at a time
after suit has been filed, or, if before, at a time when filing is fairly perceived as imminent. White v.
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Office of the Public Defender, 170 F.R.D. 138, 147 (D. Md. 1997). One court noted that the greatest of
sanctions is appropriate when the conduct demonstrates willful or contemptuous behavior, or a
deliberate attempt to hinder or prevent effective presentation of defenses or counterclaims. Manzano v.
Southern Md. Hosp., Inc., 698 A.2d 531, 537 (Md. 1997).

MASSACHUSETTES
TORT OF SPOLIATION:
In Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 773 N.E.2d 420 (2002), the Massachusetts
Supreme Court declined to recognize an action in tort for spoliation of evidence.
SANCTIONS:
The Massachusetts Supreme Court has recognized that Massachusetts courts have remedies for
spoliation of evidence, i.e., exclusion of testimony in the underlying action, dismissal, or judgment by
default. See Gath v. M/A-Com, Inc., 440 Mass. 482, 499, 802 N.E.2d 521, 535 (Mass. 2003). Sanctions
should be carefully tailored to remedy the precise unfairness occasioned by the spoliation. Id. at 426;
see also, Keene v. Brigham & Womens Hosp., Inc., 786 N.E.2d 824, 833-34 (Mass. 2003). Sanctions
may be imposed even if the spoliation of evidence occurred before the legal action was commenced, if
a litigant knows or reasonably should know that the evidence might be relevant to a possible action.
Stull v. Corrigan Racquetball Club, Inc., 2004 WL 505141 (Mass. Super. 2004).

MICHIGAN
TORT OF SPOLIATION:
Michigan does not recognize spoliation of evidence as a separate tort. Panich v. Iron Wood Prods.
Corp., 445 N.W.2d 795 (Mich. Ct. App. 1989). However, Michigan has never explicitly refused to
consider spoliation of evidence as an actionable tort claim if the right facts were present. Wilson v. Sinai
Grace Hosp., 2004 WL 915044 (Mich. App. 2004).
ADVERSE INFERENCE/PRESUMPTION:
Spoliation of evidence is controlled by a jury instruction, M. Civ. J.I.2d 6.01(d), which provides that a
trier of fact may infer the evidence not offered in a case would be adverse to the offending party if: (1)
the evidence was under the offending partys control; (2) could have been produced by the offending
party; (3) that no reasonable excuse is shown for the failure to produce the evidence. When these three
elements are shown, a permissible inference is allowed that the evidence would have been adverse to
the offending party. However, the trier of fact remains free to determine this issue for itself. Lagalo v.
Allied Corp., 592 N.W.2d 786, 789 (Mich. Ct. App. 1999).
When there is evidence of willful destruction, a presumption arises that the non-produced evidence
would have been adverse to the offending party, and when left unrebutted, this presumption requires a
conclusion that the unproduced evidence would have been adverse to the offending party. Trupiano v.
Cully, 84 N.W.2d 747, 748 (Mich. 1957). Generally, where a party deliberately destroys evidence, or
fails to produce it, courts presume that the evidence would operate against the party who destroyed it
or failed to produce it. Johnson v. Secretary of State, 406 Mich. 420, 440, 280 N.W.2d 9 (Mich. 1979);
Berryman v. K Mart Corp., 193 Mich.App. 88, 101, 483 N.W.2d 642 (Mich. 1992); Ritter v. Meijer, Inc.,
128 Mich.App. 783, 786, 341 N.W.2d 220 (Mich. 1983). It is well-settled that only when the complaining
party can establish intentional conduct indicating fraud and a desire to destroy [evidence] and thereby
suppress the truth. can such a presumption arise. Trupiano v. Cully, 349 Mich. 568, 570, 84 N.W.2d
747 (Mich. 1957), quoting 20 Am. Jur., Evidence, 185, p. 191; see also Lagalo v. Allied Corp., 233
Mich.App. 514, 520, 592 N.W.2d 786 (Mich. 1999).

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MINNESOTA
TORT OF SPOLIATION:
Minnesota does not recognize an independent spoliation tort. Federated Mut. Ins. Co. v. Litchfield
Precision Components, Inc., 456 N.W.2d 434, 437 (Minn.1990).
SANCTIONS:
Spoliation sanctions are typically imposed where one party gains an evidentiary advantage over the
opposing party by failing to preserve evidence. See Himes v. Woodings-Verona Tool Works, Inc., 565
N.W.2d 469, 471 (Minn. App. 1997), review denied (Minn. 1997). This is true where the spoliator knew
or should have known that the evidence should be preserved for pending or future litigation; the intent
of the spoliator is irrelevant. Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995). When the
evidence is under the exclusive control of the party who fails to produce it, Minnesota permits the jury to
infer that the evidence, if produced, would have been unfavorable to that party. Federated Mut., 456
N.W.2d at 437. Furthermore, the propriety of a sanction for the spoliation of evidence is determined by
the prejudice resulting to the opposing party. Prejudice is determined by considering the nature of the
item lost in the context of the claims asserted and the potential for correcting the prejudice. Patton, 538
N.W.2d at 119. Adverse Inference Instruction Michigan, Civ. J.I.G. 12.35, reads that, If either party
does not produce evidence that the party could reasonably be expected to produce and intentionally
destroys evidence which that party has been ordered to produce and fails to give a reasonable
explanation, you may decide that theevidence would have been unfavorable to that party.

MISSISSIPPI
TORT OF SPOLIATION:
In Dowdle, the Mississippi Supreme Court refused to recognize a separate tort for intentional spoliation
of evidence against both first and third-party spoliators. Dowdle Butane Gas Co. v. Moore, 831 So.2d
1124, 1135 (Miss. 2002). In Richardson the Court likewise refused to recognize a separate tort for
negligent spoliation of evidence. Richardson v. Sara Lee Corp., 847 So.2d 821, 824 (Miss. 2003).
ADVERSE INFERENCE/PRESUMPTION:
In Stahl v. Wal-Mart Stores, Inc., 47 F.Supp.2d 783, 787 n. 3 (S.D. Miss. 1998), the court held that in
the absence of bad faith i.e., evidence of culpability on the part of the spoliator then there can be no
adverse influence or presumptioneven when there is prejudice to the innocent party. The court
further held it is a general rule that the intentional spoliation or destruction of evidence relevant to a
case raises a presumption, or, more properly, an inference, that this evidence would have been
unfavorable to the case of the spoliator. Tolbert v. State, 511 So.2d 1368, 1372-73 (Miss. 1987),
quoting Washington v. State, 478 So.2d 1028, 1032-33 (Miss. 1985). Such a presumption or inference
arises, however, only when the spoliation or destruction was intentional and indicates fraud and a
desire to suppress the truth and it does not rise where the destruction was a matter of routine with no
fraudulent intent. Id.
SANCTIONS:
Spoliation remedies include discovery sanctions, criminal penalties or disciplinary actions against
attorneys who participate in spoliation. Dowdle, supra. Mississippi recognizes a refutable negative or
adverse inference against a spoliator. Thomas v. Isle of Capri Casino, 781 So.2d 125 (Miss. 2001).

MISSOURI
ADVERSE INFERENCE:
A party who intentionally destroys or significantly alters evidence is subject to an adverse evidentiary
inference under the spoliation of evidence doctrine. Baldridge v. Director of Revenue, 82 S.W.3d 212,
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222 (Mo. App. 2002). [T]he destruction of written evidence without satisfactory explanation gives rise
to an inference unfavorable to the spoliator. Garrett v. Terminal R. Assn of St. Louis, 259 S.W.2d 807,
812 (Mo. 1953). Similarly, where one party has obtained possession of physical evidence which [the
party] fails to produce or account for at the trial, an inference is warranted against that party. State ex
rel. St. Louis County Transit Co. v. Walsh, 327 S.W.2d 713, 717 (Mo. App. 1959). [W]here one
conceals or suppresses evidence such action warrants an unfavorable inference. Id. at 717-18.
When an adverse inference is urged, it is necessary that there be evidence showing intentional
destruction of the item, and also such destruction must occur under circumstances which give rise to an
inference of fraud and a desire to suppress the truth. In such cases, it may be shown by the proponent
that the alleged spoliator had a duty, or should have recognized a duty, to preserve the evidence.
Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 77-78 (Mo. App. 1995). Since the doctrine of
spoliation is a harsh rule of evidence, prior to applying it in any given case, it should be the burden of
the party seeking its benefit to make a prima facie showing the opponent destroyed the missing
[evidence] under circumstances manifesting fraud, deceit or bad faith. Baldridge, supra.. Simple
negligence is not sufficient to apply the adverse inference rule. Brissette v. Milner Chevrolet Co., 479
S.W.2d 176, 182 (Mo. App. 1972).

MONTANA
TORT OF SPOLIATION:
Montana courts have adopted the torts of both intentional and negligent spoliation against third parties.
Negligent spoliation of evidence consists of the following elements: (1) existence of a potential civil
action; (2) legal or contractual duty to preserve evidence relevant to that action; (3) destruction of that
evidence; (4) significant impairment of the ability to prove the potential civil action; (5) causal
connection between the destruction of the evidence and the inability to prove the lawsuit; (6) significant
possibility of success of the potential civil action if the evidence were available; and (7) damages. See
Gentry v. Douglas Hereford Ranch, Inc., 1998 Mont. 182, 290 Mont. 126, 962 P.2d 1205 (Mont. 1998);
Oliver v. Stimson Lumber Co., 297 Mont. 336, 345-354, 993 P.2d 11, 18-23 (Mont. 1999). Intentional
spoliation consists of the following elements: (1) the existence of a potential lawsuit; (2) the defendants
knowledge of the potential lawsuit; (3) the intentional destruction of evidence designed to disrupt or
defeat the potential lawsuit; (4) disruption of the potential lawsuit; (5) a causal relationship between the
act of spoliation and the inability to prove the lawsuit; and (6) damages. Id.
Under Montana law, the tort of spoliation of evidence (whether intentional or negligent) requires the
existence of a potential lawsuit. Oliver v. Stimson Lumber Co., 297 Mont. 336, 993 P.2d 11, 21 (Mont.
1999). Spoliation of evidence can only occur in connection with some other lawsuit; it is intrinsically
bound up in the same transaction as the underlying lawsuit. Smith v. Salish Kootenai College, 378 F.3d
1048, 1058 (9th Cir. Mont. 2004).

NEBRASKA
ADVERSE INFERENCE:
When intentional destruction of evidence is established, the fact finder may draw the inference that the
evidence destroyed was unfavorable to the party responsible for its destruction. See State v. Davlin,
263 Neb. 283, 639 N.W.2d 631 (Neb. 2002); Trieweiler v. Sears, 268 Neb. 952, 992, 689 N.W.2d 807,
843 (Neb. 2004).

NEVADA
TORT OF SPOLIATION:
Nevada does not recognize a separate tort for first-party or third-party spoliation of evidence. Timber
Tech Engineered Bldg. Products v. The Home Ins. Co., 55 P.3d 952, 953-54 (Nev. 2002).
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ADVERSE INFERENCE:
It is well-established that a party is entitled to jury instructions on every theory of her case that is
supported by the evidence. Bass-Davis v. Davis, 117 P.3d 207, 209 (Nev. 2005). In Reingold v. Wet N
Wild Nevada, Inc., 113 Nev. 967, 970, 944 P.2d 800, 802 (Nev. 1997), the Nevada Supreme Court
recognized that under N.R.S. 47.250(3), when evidence is willfully destroyed, the trier of fact is
entitled to presume that the evidence was adverse to the destroying party. It further held that evidence
is willfully destroyed even if the evidence is destroyed pursuant to an established company policy.
Bass-Davis v. Davis, 117 P.3d at 210.

NEW HAMPSHIRE
ADVERSE INFERENCE:
An adverse inference that the missing evidence would have been unfavorable can be drawn only
when the evidence was destroyed deliberately with a fraudulent intent. See Rodriguez v. Webb, 141
N.H. 177, 180, 680 A.2d 604 (N.H. 1996). The timing of the document destruction is not dispositive on
the issue of intent, however, and an adverse inference can be drawn even when the evidence is
destroyed prior to a claim being made. See Id. at 178, 180, 680 A.2d 604; Murray v. Developmental
Services of Sullivan County, Inc., 149 N.H. 264, 271, 818 A.2d 302, 309 (N.H. 2003).

NEW JERSEY
ADVERSE INFERENCE AND SANCTIONS:
Spoliation of evidence in a prospective civil action occurs when evidence relevant to the action is
destroyed, causing interference with the actions proper administration and disposition. Manorcare
Health v. Osmose Wood, 336 N.J. Super. 218, 226, 764 A.2d 475, 479 (N.J. App. Div. 2001). In civil
litigation, depending on the circumstances, spoliation of evidence can result in a separate tort action for
fraudulent concealment, discovery sanctions, or an adverse trial inference against the party that caused
the loss of evidence. See Rosenblit v. Zimmerman, 166 N.J. 391, 400-06, 766 A.2d 749 (N.J. 2001).
But, the Supreme Court of New Jersey held that it did not recognize a separate tort action for
intentional spoliation. Id. at 404-05. An adverse inference instruction may be given during the
underlying litigation whereby it is presumed the destroyed evidence would have been unfavorable to
the destroyer. See Swick v. N.Y. Times, 815 A.2d 508, 511 (N.J. 2003).
Discovery sanctions may include a designation that certain facts are taken as established, a refusal to
permit the disobedient party to support or oppose claims or defenses, prohibiting the introduction of
designated matters into evidence, dismissal of an action, or entry of judgment by default. Id. An
appropriate remedy may include an award of counsel fees in exceptional cases, particularly where
there is a finding of intentional spoliation and the non-spoliating partys ability to defend itself was
compromised. Grubbs v. Knoll, 376 N.J. Super. 420, 435-436, 870 A.2d 713 (N.J. Super. A.D. 2005).

NEW MEXICO
TORT OF INTENTIONAL SPOLIATION:
The New Mexico Supreme Court has recognized the tort of intentional spoliation of evidence. Coleman
v. Eddy Potash, Inc., 120 N.M. 645, 649, 905 P.2d 185, 189 (N.M. 1995) overruled on other grounds,
Delgado v. Phelps Dodge Chino, Inc., 34 P.3d 1148 (N.M. 2001). Coleman established the following
elements for the tort of intentional spoliation of evidence: (1) the existence of a potential lawsuit; (2) the
defendants knowledge of the potential lawsuit; (3) the destruction, mutilation, or significant alteration of
potential evidence; (4) intent on the part of the defendant to disrupt or defeat the lawsuit; (5) a causal
relationship between the act of spoliation and the inability to prove the lawsuit; and (6) damages.
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TORT OF NEGLIGENT SPOLIATION:

The Court in Coleman rejected a separate cause of action for negligent spoliation of evidence.
Coleman, 120 N.M. at 650, 905 P.2d at 190 (stating that adequate remedies exist under traditional
negligence principles and relying on the general expectation that an owner has a free hand in the
manner in which he or she disposes of his or her property)
ADVERSE INFERENCE:
Where the actions of the spoliator fail to rise to the level of malicious conduct or otherwise meet the
elements of the tort of intentional spoliation of evidence, New Mexico believes a more appropriate
remedy would be a permissible adverse evidentiary inference by the jury in the underlying claim. This
evidentiary inference could be accomplished through an instruction to the jury that it is permissible to
infer that evidence intentionally destroyed, concealed, mutilated, or altered by a party without
reasonable explanation would have been unfavorable to that party. Trial courts, in determining whether
to give this instruction, should consider whether the spoliation was intentional, whether the spoliator
knew of the reasonable possibility of a lawsuit involving the spoliated object, whether the party
requesting the instruction acted with due diligence with respect to the spoliated evidence, and whether
the evidence would have been relevant to a material issue in the case. Torres v. El Paso Elec. Co., 987
P.2d 386, 401-407 (N.M. 1999).
SANCTIONS:
New Mexico recognizes that spoliation of evidence may result in sanctions. These sanctions include
dismissal or adverse inference. Segura v. K-Mart Corp., 62 P.3d 283, 286-87 (N.M. 2002).

NEW YORK
THIRD-PARTY NEGLIGENT SPOLIATION:
The Court of Appeals of New York declined to recognize such a cause of action under the facts of MetLife Auto & Home v. Joe Basil Chevrolet, Inc., 1 N.Y.3d 478, 807 N.E.2d 865, 775 N.Y.S.2d 754 (N.Y.
2004). The court in this case focused its decision on the non-existence of a duty giving rise to
preservation of evidence and the lack of notice to preserve the evidence militated against establishing
such a cause of action.
SPOLAITION BY AN EMPLOYER:
Spoliation by an employer may support a common law cause of action when such spoliation impairs an
employees right to sue a third-party tortfeasor. See DiDomenico v. C & S Aeromatik Supplies, 252
A.D.2d 41, 682 N.Y.S.2d 452 (N.Y. 2d Dept. 1998). But in other instances, New York Courts have
specifically rejected a cause of action for spoliation of evidence when the employer was not on notice
that evidence would be needed. Monteiro v. R.D. Werner Co., 301 A.D.2d 636, 754 N.Y.S.2d 328 (N.Y.
2d Dept. 2003) (employer had no duty to preserve scaffold which allegedly caused plaintiffs injuries
and employer was not on notice that an action was contemplated against a third-party).
SANCTIONS:
C.P.L.R. 3126 permits sanctions, including dismissal for a partys failure to disclose relevant
evidence. Met-Life, 1 N.Y.3d at 482-83. New York courts will impose carefully chosen and specifically
tailored sanctions within the context of the underlying action to remedy spoliation of evidence. For
instance, a defendant may be granted summary judgment when the plaintiff negligently fails to preserve
crucial evidence. Amaris v. Sharp Elecs., 758 N.Y.S.2d 637 (N.Y. App. Div. 2003). However, awarding
summary judgment to the plaintiff for the defendants intentional destruction of evidence may be too
drastic a remedy. Mylonas v. Town of Brookhaven, 759 N.Y.S.2d 752, 753-754 (N.Y. App. Div. 2003).
But see Herrera v. Matlin, 758 N.Y.S.2d 7, 7 (N.Y. App. Div. 2003), affd 771 N.Y.S.2d 347 (N.Y. A.D.
2004) (physicians loss of records amounting to professional misconduct warranted striking of answer).
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NORTH CAROLINA
ADVERSE PRESUMPTION/INFERENCE:
The North Carolina Supreme Court recognizes a permissive, rather than mandatory adverse inference
may be drawn against a spoliator of evidence. McLain v. Taco Bell Corp., 137 N.C. App. 179, 182-192,
527 S.E.2d 712, 715 - 721 (N.C. App. 2000). [T]o qualify for the adverse inference, the party
requesting it must ordinarily show that the spoliator was on notice of the claim or potential claim at the
time of the destruction. McLain, 137 N.C. App. at 187, 527 S.E.2d at 718 (quotation omitted). The
obligation to preserve evidence may arise prior to the filing of a complaint where the opposing party is
on notice that litigation is likely to be commenced. Id. The evidence lost must be pertinent and
potentially supportive of plaintiffs allegations. Id. at 188, 527 S.E.2d at 718.
Finally, [t]he proponent of a missing document inference need not offer direct evidence of a cover-up
to set the stage for the adverse inference. Circumstantial evidence will suffice. Id. at 186, 527 S.E.2d
at 718; Arndt v. First Union Nat. Bank, 613 S.E.2d 274, 281-283 (N.C. App. 2005).

NORTH DAKOTA
ADVERSE INFERENCE/SANCTIONS:
Trial courts in North Dakota have the authority to sanction a party when key evidence is missing, even
where the party has not violated a court order and even when there has been a no finding of bad faith.
Bachmeier v. Wallwork Truck Ctrs., 544 N.W.2d 122, 124 (N.D. 1996). In sanctioning a party, the
district court should at least consider the culpability, or state of mind, of the party against whom
sanctions are being imposed; a finding of prejudice against the moving party, and the degree of this
prejudice, including the impact it has on presenting or defending the case; and, the availability of less
severe alternative sanctions. Id. at 124-25. Trial courts have the duty to impose the least restrictive
sanction available under the circumstances in the exercise of its inherit power. Id. at 125. Sanctions
can include dismissal, preclusion of evidence, or adverse inference. Id. at 126.

OHIO
TORT OF SPOLIATION:
The Supreme Court of Ohio held that a cause of action exists in tort for intentional spoliation against
parties to the primary action as well as third parties. Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d
28, 29, 615 N.E2d 1037 (Ohio 1993). The elements required are: (1) pending or probable litigation
involving the plaintiff; (2) knowledge on the part of the defendant that litigation exists or is probable; (3)
willful destruction of evidence by defendant designed to disrupt plaintiffs case; (4) disruption of
plaintiffs case; and (5) damages proximately caused by defendants acts.
PUNITIVE DAMAGES:
The Ohio Supreme Court has determined that spoliation of evidence may be the basis of an award of
punitive damages in an underlying medical malpractice action. Moskovitz v. Mt. Sinai Med. Ctr., 635
N.E.2d 331 (Ohio App. 1994).
SANCTIONS/ADVERSE INFERENCE:
Courts also recognize discovery sanctions for an adverse partys failure to provide evidence if the same
was willful and prejudice is established. Barker v. Wal-Mart Stores, Inc., 2001 WL 1661961, 7 (Ohio Ct.
App. Dec. 31, 2001). Ohio uses Jury Instruction 305.1. Tate v. Adena Regional Med. Ctr., 801 N.E.2d
930 (Ohio App. 2003).

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OKLAHOMA
TORT OF SPOLIAITON:
In Patel v. OMH Medical Center, Inc., 987 P.2d 1185 (Okla. 1999), the Oklahoma Supreme Court
stated [n]either spoliation of evidence nor prima facie tort (for acts constituting spoliation of evidence)
has ever been recognized by this court as actionable.
ADVERSE INFERENCE:
Spoliation occurs when evidence relevant to prospective civil litigation is destroyed, adversely affecting
the ability of a litigant to prove his or her claim. Patel v. OMH Medical Center, Inc., 987 P.2d at 1202. If
applicable, destruction of evidence without a satisfactory explanation gives rise to an inference
unfavorable to the spoliator. Manpower, Inc. v. Brawdy, 62 P.3d 391, 392 (Okla. Ct. App. 2002).

OREGON
ADVERSE PRESUMPTION:
Oregon has a statutory provision allowing that willful suppression of evidence raises an unfavorable
presumption against the party who suppressed it. O.R.S. 40.135, Rule 311(1)(c). see also Stephens
v. Bohlman, 909 P.2d 208, 211 (Or. Ct. App. 1996).

PENNSYLVANIA
TORT OF SPOLIATION:
Spoliation of evidence is not recognized as a separate cause of action under Pennsylvania law. Elias v.
Lancaster Gen. Hosp., 710 A.2d 65, 68 (Pa. Super. Ct. 1998).
SANCTIONS:
Parties can be sanctioned for spoliation of evidence. Id. In Pennsylvania, spoliation provides that a
party cannot benefit from its own withholding or destruction of evidence by creating an adverse
inference that the evidence is unfavorable to that party. Manson v. Southeastern Transp. Auth., 767
A.2d 1, 5 (Pa. 2001). Whether and how to sanction a party is within the discretion of the court. Eichman
v. McKeon, 824 A.2d 305, 312-314 (Pa. Super. Ct. 2003). A determination of the appropriate sanction
requires the court to determine three factors: (1) the degree of fault of the parties who alter or destroy
the evidence; (2) the degree of prejudice suffered by the opposing parties; (3) the availability of a lesser
sanction that will protect the opposing parties rights and deter future similar conduct. Id. (citing
Schroeder v. Commonwealth Dept of Transp., 710 A.2d 23 (Pa. 1998) (adopting the test from Schmid
v. Milwaukee Elec. Tool Corp., 13 F.3d 76 (3rd Cir. 1994)).

RHODE ISLAND
TORT OF SPOLIATION:
Neither the Rhode Island legislature or the courts have yet established or recognized the existence of
an independent tort for spoliation of evidence. See Malinowski v. Documented Vehicle/Drivers
Systems, Inc., 66 Fed. Appx. 216, 222 (R.I. 2003).
ADVERSE INFERENCE:
Rhode Island does recognize that an adverse inference may be given as a spoliation of evidence
instruction. Mead v. Papa Razzi Restaurant, 840 A.2d 1103, 1108 (R.I. 2004). The party seeking the
spoliation of evidence has the burden of proof to establish that the destruction of evidence was
deliberate or negligent. See Malinowski v. United Parcel Serv., 792 A.2d 50, 54-55 (R.I. 2002).
Furthermore, it is not necessary to show bad faith by the spoliator to draw the adverse inference,
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however bad faith may strengthen the spoliation inference. Kurczy v. St. Josephs Veterans Assn, Inc.,
820 A.2d 929, 946 (R.I. 2003).

SOUTH CAROLINA
TORT OF SPOLIATION:
There is no case law in South Carolina discussing spoliation of evidence, specifically. However, South
Carolina apparently recognizes a type of adverse inference rule as it relates to loss or destruction of
evidence. Wisconsin Motor Corp. v. Green, 79 S.E.2d 718, 720-21 (S.C. 1954). It appears as though
such inference may be given when a party does not provide an explanation for its failure to produce
appropriate documents. Id.

SOUTH DAKOTA
ADVERSE INFERENCE:
Under South Dakota law, if a party fails to present evidence or witnesses, such non-production justifies
an inference that the evidence would be unfavorable. Cody v. Leapley, 476 N.W.2d 257, 264 (S.D.
1991). The non-production or suppression by a party of evidence which is within his power to produce
and which is material to an issue in the case justifies the inference that it would be unfavorable to him if
produced. Id.; Leisinger v. Jacobson, 651 N.W.2d 693, 699 (S.D. 2002). The burden of proof with
respect to the adverse inference rule is on the spoliator to show that it acted in a non-negligent, good
faith manner in destroying the document sought. Wuest v. McKennan Hosp., 619 N.W.2d 682, 686
(S.D. 2000). The spoliator must show he acted in good faith without negligence or malice in destroying
the evidence. Id. A jury is required to determine if the explanation given is reasonable and if so, may
not infer that the missing information contained unfavorable evidence to the opposing party. Id.

TENNESSEE
ADVERSE INFERENCE:
The doctrine of spoliation of evidence permits a court to draw a negative inference against a party that
has intentionally, and for an improper purpose, destroyed, mutilated, lost, altered, or concealed
evidence. See Foley v. St. Thomas Hosp., 906 S.W.2d 448, 453-54 (Tenn. Ct. App. 1995); Bronson v.
Umphries, 138 S.W.3d 844, 854 -855 (Tenn. Ct. App. 2003).

TEXAS
TORT OF SPOLIATION:
Texas does not recognize an independent cause of action for intentional or negligent spoliation of
evidence by parties to litigation. Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex. 1998).
ADVERSE INFERENCE INSTRUCTION:
A spoliation instruction is an instruction given to the jury outlining permissible inferences they may
make against a party who has lost, altered, or destroyed evidence. Brewer v. Dowling, 862 S.W.2d 156,
159 (Tex. App. - Fort Worth 1993), writ denied. A party who has deliberately destroyed evidence is
presumed to have done so because the evidence was unfavorable to its case. A trial judge has broad
discretion in determining whether to provide a jury with a spoliation presumption instruction. See
Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998); Texas Elec. Co-op. v. Dillard, 171 S.W.3d 201,
208-209 (Tex. App. Tyler 2005). The intentional spoliation of evidence relevant to a cause raises a
presumption the evidence would have been unfavorable to the spoliators. Id. This presumption can be
rebutted by evidence that the spoliation was not a result of fraudulent intent and does not apply when
documents are merely lost. Cresthaven Nursing Residence v. Freeman, 2003 WL 253283, 8, 10 (Tex.
Ct. App., Feb. 5, 2003).
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The presumption does not arise unless the party responsible for destruction of evidence had a duty to
preserve it. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003). However, such a duty
arises only when a party knows or reasonably should know that there is a substantial chance that a
claim will be filed and that evidence in its possession or control will be material and relevant to that
claim. Id. A party need not take extraordinary measures to preserve evidence, but must exercise
reasonable care in preserving evidence. Trevino, 969 S.W.2d at 951. A court may determine there is no
breach of the duty to preserve evidence if the alleged spoliator offers an innocent explanation such as
that the evidence was destroyed in an ordinary course of business. Id. Finally, the party alleging
spoliation is not entitled to remedy unless it establishes prejudice. Id.

UTAH
There is no authority demonstrating that Utah has adopted the spoliation doctrine. See Burns v.
Cannondale Bicycle Co., 876 P.2d 415, 419 (Utah App. 1994).

VERMONT
The only Vermont case discussing destruction of evidence requires that a party must have reason or
obligation to preserve evidence before a presumption of falsity will arise. Lavalette v. Noyes, 205 A.2d
413, 415 (Vt. 1964).

VIRGINIA
ADVERSE INFERENCE:
Virginia law recognizes spoliation or missing evidence inference, which provides that [w]here one party
has within his control material evidence and does not offer it, there is [an inference] that the evidence, if
it had been offered, would have been unfavorable to that party. Charles E. Friend, The Law of
Evidence in Virginia 10-17, at 338 (5th ed.1999); see Jacobs v. Jacobs, 218 Va. 264, 269, 237 S.E.2d
124, 127 (Va. 1977) (holding principle is an inference rather than a presumption). Further, Virginia
acknowledges that spoliation issues also arise when evidence is lost, altered, or cannot be produced.
Wolfe v. Virginia Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580-583, 580
S.E.2d 467, 475-476 (Va. App. 2003). A spoliation inference may be applied in an existing action if, at
the time the evidence was lost or destroyed, a reasonable person in the defendants position should
have foreseen that the evidence was material to a potential civil action.
In a third-party spoliation context, an employer has no duty to preserve evidence on behalf of an
employee who seeks to bring a third-party claim. Austin v. Consolidation Coal Co., 501 S.E.2d 161, 163
(Va. 1998). Under the Virginia Workers Compensation Act there is no duty imposed on an employer to
preserve evidence. Id. at 163-64. However, this case applies only to an employers duty to preserve
evidence.
ADMISSION (PARTY OR AGAINST INTEREST):
In general, a partys conduct, so far as it indicates his own belief in the weakness of his cause, may be
used against him as an admission, subject of course to any explanations he may be able to make
removing that significance from his conduct conduct showing the concealment or destruction of
evidential material isadmissible; in particular the destruction (spoliation) of documents as evidence of
an admission that their contents are as alleged by the opponents. 1 Greenleaf Ev. (16 Ed.), 195, at
325. Neece v. Neece, 104 Va. 343, 348, 51 S.E. 739, 740-41 (Va. 1905); Wolfe v. Virginia Birth-Related
Neurological Injury Comp. Program, 40 Va. App. 565, 580-583, 580 S.E.2d 467, 475-476 (Va. App.
2003).

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WASHINGTON
ADVERSE INFERENCE/REBUTTABLE PRESUMPTION:
In Pier 67, Inc. v. King County, 89 Wash.2d 379, 573 P.2d 2 (Wash. 1977), the court held: where
relevant evidence which would properly be a part of a case is within the control of a party whose
interests it would naturally be to produce it and he fails to do so, without satisfactory explanation, the
only inference which the finder of fact may draw is that such evidence would be unfavorable to him. 89
Wash.2d at 385-86, 573 P.2d 2. To remedy spoliation the court may apply a rebuttable presumption,
which shifts the burden of proof to a party who destroys or alters important evidence. In deciding
whether to apply a rebuttable presumption in spoliation cases, two factors control: (1) the potential
importance or relevance of the missing evidence; and (2) the culpability or fault of the adverse party.
Marshall v. Ballys Pacwest, Inc.. 94 Wash. App. 372, 381-383, 972 P.2d 475, 480 (Wash. App. Div. 2,
1999). In weighing the importance of the evidence, the court considers whether the adverse party was
afforded an adequate opportunity to examine it. Culpability turns on whether the party acted in bad faith
or whether there is an innocent explanation for the destruction. Id.

WEST VIRGINIA
TORT OF SPOLIATION - INTENTIONAL SPOLIATION:
West Virginia does recognize a tort of intentional spoliation of evidence as an independent tort when
committed by either a party to an action or a third-party. See Hannah v. Heeter, 584 S.E.2d 560, 56364 (W. Va. 2003). The elements of the tort of intentional spoliation consists of: (1) a pending or potential
civil action; (2) knowledge of the spoliator of the pending or potential civil action; (3) willful destruction of
the evidence (4) the spoliated evidence was vital to a partys ability to prevail in the pending or potential
civil action; (5) the intent of the spoliator to defeat a partys ability to prevail in the pending or potential
civil action; (6) the partys inability to prevail in the civil action; and (7) damages. Once the first six
elements are established, there arises a rebuttable presumption that but for the fact of the spoliation the
party injured by the spoliation would have prevailed in the pending or potential litigation. Id.
NEGLIGENT SPOLIATION:
West Virginia does not recognize spoliation of evidence as an independent tort when the spoliation is
the caused by the negligence of a party to a civil action. Id.
NEGLIGENT THIRD-PARTY SPOLIATION:
West Virginia does recognize spoliation of evidence as an independent tort when the spoliation is the
result of negligence of a third-party and that third-party had a special duty to preserve the evidence. Id.
The element of the tort of negligent spoliation of evidence by a third-party consists of: (1) the existence
of a pending or potential civil action; (2) the alleged spoliator had actual knowledge of the pending or
potential civil action; (3) a duty to preserve evidence arising from a contract, agreement, statute,
administrative rule, voluntary assumption, or special circumstances; (4) spoliation of the evidence; (5)
the spoliated evidence was vital to a partys ability to prevail in the pending or potential civil action; and
(6) damages. (There arises a rebuttable presumption that but for the fact of the spoliation of evidence
the party injured by the spoliation would have prevailed in the pending or potential civil litigation if the
first five element are met). Id.
PUNITIVE DAMAGES:
In actions of tort where willful conduct affecting the rights of others appears a jury may assess
exemplary, punitive, or vindictive damages. Id.
ADVERSE INFERENCE:
A trial court may give an adverse inference jury instruction or impose other sanctions against a party for
spoliation of evidence after considering: (1) the partys degree of control, ownership, possession or
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authority over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party as a
result of the missing or destroyed evidence and whether such prejudice was substantial; (3) the
reasonableness of anticipating that the evidence would be needed for litigation; and (4) if the party
controlled, owned, possessed or had authority over the evidence, the partys degree of fault in causing
the destruction of the evidence. Id. The party requesting the instruction bears the burden of proof.
SANCTIONS:
Rule 37, of the West Virginia Rules of Civil Procedure, is designed to permit the use of sanctions
against a party who refuses to comply with the discovery rules. Id.

WISCONSIN
TORT OF SPOLIATION:
Wisconsin has not recognized independent tort actions for the intentional and negligent spoliation of
evidence. Estate of Neumann ex rel. Rodli v. Neumann, 242 Wis.2d 205, 244-249, 626 N.W.2d 821,
840 - 843 (Wis. App. 2001).
ADVERSE INFERENCE:
The trier of fact can draw an adverse inference from intentional spoliation of evidence. Id.; Jagmin v.
Simonds Abrasive Co., 61 Wis.2d 60, 80-81, 211 N.W.2d 810 (Wis. 1973). The Supreme Court affirmed
the trial courts refusal to give an adverse inference instruction in the absence of clear, satisfactory and
convincing evidence that the defendant had intentionally destroyed or fabricated evidence. Jagmin, 61
Wis.2d at 80-81, 211 N.W.2d 810.
SANCTIONS:
Wisconsin trial courts have discretion in imposing sanctions for spoliation of evidence. See State v.
McGrew, 646 N.W.2d 856 (Wis. Ct. App. 2002). However, sanctions cannot be considered unless
there is clear and convincing proof that evidence was deliberately destroyed or withheld. Hoskins v.
Dodge County, 642 N.W.2d 213, 228 (Wis. Ct. App. 2002). When deciding whether and how to
sanction a party who has destroyed evidence, Wisconsin courts consider the circumstances, including
whether the destruction was intentional or negligent, whether comparable evidence is available, and
whether at the time of destruction the responsible party knew or should have known that a lawsuit was
a possibility. Farr v. Evenflo Co., Inc., 287 Wis.2d 827, 705 N.W.2d 905 (Wis. 2005); Id. In Garfoot v.
Firemans Fund Ins. Co., 228 Wis.2d 707, 724, 599 N.W.2d 411 (Wis. Ct. App. 1999), the court held
that dismissal as a sanction for destruction of evidence requires a finding of egregious conduct, which,
in this context, consists of a conscious attempt to affect the outcome of litigation or a flagrant knowing
disregard of the judicial process. The spoliation rule does not apply in administrative proceedings. Yao
v. Bd. of Regents of Univ. of Wis. Sys., 649 N.W.2d 356, 362 (Wis. Ct. App. 2002).

WYOMING
TORT OF SPOLIATION:
Rather than recognize an independent tort claim for fraudulent creation of evidence (or spoliation of
evidence), Wyoming law allows courts to draw an adverse inference against a party responsible for
losing or destroying evidence. See Coletti v. Cudd Pressure Control, 165 F.3d 767, 775-776 (10th Cir.
1999) (applying Wyoming law).
ADVERSE INFERENCE:
It is well-settled that a partys bad-faith with holding, destruction, or alteration of a document or other
physical evidence relevant to proof of an issue at trial gives rise to a presumption or inference that the
evidence would have been unfavorable to the party responsible for its non-production, destruction, or
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alteration. The Wyoming Supreme Court stated that, for example, in a negligence action, where a party
demonstrates that evidence was concealed or destroyed in bad faith (either deliberately or with
reckless disregard for its relevance), that fact should be admitted, counsel should be permitted to argue
the inference to the jury, the court should instruct the jury as to the inference, and the jury may infer that
the fact would have helped prove negligence; a courts refusal may be an abuse of discretion. Indeed,
some courts have held that such destruction creates a presumption that shifts the burden of production,
or even persuasion, to the party responsible for the destruction. Abraham v. Great Western Energy,
LLC, 101 P.3d 446, 455-456 (Wyo. 2004).
SANCTIONS:
Where the evidence, rather than being destroyed, has been tampered with in bad faith, a court has the
option of excluding it, thus denying its use by the tampering party. Where the alteration is not in bad
faith and is not so egregious, however, the evidence itself should be admitted, together with information
relating to how it was altered, and counsel may argue the issue to the jury. Id. Where the loss or
destruction of evidence is not intentional or reckless, by contrast, some courts give the trial court
discretion to admit or exclude testimony relating to the missing evidence, and discretion to give or
withhold a missing evidence instruction and a court should refuse to give such instruction if the nonproduced evidence is cumulative or of marginal relevance. Id.
In a case that warrants imposition of a sanction against the spoliating party, the court may choose to
instruct the jury on the spoliation inference, i.e., inform the jury that the lost evidence is to be
presumed unfavorable to that party; preclude the spoliating party from introducing expert testimony
concerning testing on the missing product or other evidence concerning the product; or dismiss the
plaintiffs claim or the defendants defense or grant summary judgment to the innocent party. Abraham
v. Great Western Energy, LLC,101 P.3d at 455-456, citing Richard E. Kaye, Annotation, Effect of
Spoliation of Evidence in Products Liability Action, 102 A.L.R. 5th 99-100 (2002).

21
158

SAMPLE Spoliation Protection Letters

159

Form spoliation letter to opposing counsel

[date]
[address]
re: [matter (, case number)]
Dear: ___________,
By this letter, you and your client{s} are hereby given notice not to destroy, conceal or alter any
paper or electronic files and other data generated by and/or stored on your clients {clients}
computers and storage media (e.g., hard disks, floppy disks, backup tapes), or any other
electronic data, such as voice mail. As you know, your clients {clients} failure to comply with this
notice can result in severe sanctions being imposed by the Court {and liability in tort} for
spoliation of evidence or potential evidence.
Through discovery we expect to obtain from you a number of documents and things, including
files stored on your clients {clients} computers and your clients {clients} computer storage
media. {As part of our initial discovery efforts, you [are hereby served with/will soon receive]
[initial/supplemental] interrogatories and requests for documents and things.}
In order to avoid spoliation, you will need to provide the data requested on the original media. Do
not reuse any media to provide this data.
{Although [we may bring/have brought] a motion for an order preserving documents and things
from destruction or alteration, your clients {clients} obligation to preserve documents and things
for discovery in this case arises in law and equity independently from any order on such motion.}
Electronic documents and the storage media on which they reside contain relevant, discoverable
information beyond that which may be found in printed documents. Therefore, even where a
paper copy exists, we [seek/will seek] all documents in their electronic form along with information
about those documents contained on the media. We also [seek/will seek] paper printouts of only
those documents that contain unique information after they were printed out (such as paper
documents containing handwriting, signatures, marginalia, drawings, annotations, highlighting
and redactions) along with any paper documents for which no corresponding electronic files exist.
Our discovery requests [ask/will ask] for certain data on the hard disks, floppy disks and backup
media used in your clients {clients} computers, some of which data are not readily available to
an ordinary computer user, such as deleted files and file fragments. As you may know,
although a user may erase or delete a file, all that is really erased is a reference to that file in a
table on the hard disk; unless overwritten with new data, a deleted file can be as intact on the
disk as any active file you would see in a directory listing.
{Courts have made it clear that all information available on electronic storage media is
discoverable, whether readily readable (active) or deleted but recoverable. See, e.g., Easley,
McCaleb & Assocs., Inc. v. Perry, No. E-2663 (Ga. Super. Ct. July 13, 1994; deleted files on a
partys computer hard drive held to be discoverable, and plaintiffs expert was allowed to retrieve
all recoverable files); Santiago v. Miles, 121 F.R.D. 636, 640 (W.D.N.Y. 1988; a request for raw
information in computer banks was proper and obtainable under the discovery rules); Gates
Rubber Co. v. Bando Chemical Indus., Ltd., 167 F.R.D. 90, 112 (D. Colo. 1996; mirror-image
copy of everything on a hard drive the method which would yield the most complete and
accurate results, chastising a partys expert for failing to do so); and Northwest Airlines, Inc. v.
Teamsters Local 2000, et al., 163 L.R.R.M. (BNA) 2460, (USDC Minn. 1999); court ordered
image-copying by Northwests expert of home computer hard drives of employees suspected of
orchestrating an illegal sick-out on the Internet).}

160

Accordingly, electronic data and storage media that may be subject to our discovery requests and
that your client{s} are obligated to maintain and not alter or destroy, include but are not limited to
the following:
Introduction: description of files and file types sought
All digital or analog electronic files, including deleted files and file fragments, stored in machinereadable format on magnetic, optical or other storage media, including the hard drives or floppy
disks used by your clients {clients} computers and their backup media (e.g., other hard drives,
backup tapes, floppies, Jaz cartridges, CD-ROMs) or otherwise, whether such files have been
reduced to paper printouts or not. More specifically, your client{s} is {are} to preserve all of your emails, both sent and received, whether internally or externally; all word-processed files, including
drafts and revisions; all spreadsheets, including drafts and revisions; all databases; all CAD
(computer-aided design) files, including drafts and revisions; all presentation data or slide shows
produced by presentation software (such as Microsoft PowerPoint); all graphs, charts and other
data produced by project management software (such as Microsoft Project); all data generated by
calendaring, task management and personal information management (PIM) software (such as
Microsoft Outlook or Lotus Notes); all data created with the use of personal data assistants
(PDAs), such as PalmPilot, HP Jornada, Cassiopeia or other Windows CE-based or Pocket PC
devices; all data created with the use of document management software; all data created with
the use of paper and electronic mail logging and routing software; all Internet and Web-browsergenerated history files, caches and cookies files generated at the workstation of each employee
and/or agent in your clients {clients} employ and on any and all backup storage media; and any
and all other files generated by users through the use of computers and/or telecommunications,
including but not limited to voice mail. Further, you are to preserve any log or logs of network use
by employees or otherwise, whether kept in paper or electronic form, and to preserve all copies of
your backup tapes and the software necessary to reconstruct the data on those tapes, so that
there can be made a complete, bit-by-bit mirror evidentiary image copy of the storage media of
each and every personal computer (and/or workstation) and network server in your control and
custody, as well as image copies of all hard drives retained by you and no longer in service, but in
use at any time from ________________ to the present.
Your client{s} is {are} also not to pack, compress, purge or otherwise dispose of files and parts of
files unless a true and correct copy of such files is made.
Your client{s} is {are} also to preserve and not destroy all passwords, decryption procedures
(including, if necessary, the software to decrypt the files); network access codes, ID names,
manuals, tutorials, written instructions, decompression or reconstruction software, and any and all
other information and things necessary to access, view and (if necessary) reconstruct the
electronic data we [are requesting/will request] through discovery.

1. Business Records: [All documents and information about documents containing backup
and/or archive policy and/or procedure, document retention policy, names of backup and/or
archive software, names and addresses of any offsite storage provider.]
a. All e-mail and information about e-mail (including message contents, header information
and logs of e-mail system usage) {sent or received} by the following persons:
[list names, job titles]
b. All other e-mail and information about e-mail (including message contents, header
information and logs of e-mail system usage) containing information about or related to:
[insert detail]

161

c.

All databases (including all records and fields and structural information in such
databases), containing any reference to and/or information about or related to:
[insert detail]

d. All logs of activity (both in paper and electronic formats) on computer systems and
networks that have or may have been used to process or store electronic data containing
information about or related to:
[insert detail]
e. All word processing files, including prior drafts, deleted files and file fragments,
containing information about or related to:
[insert detail]
f.

With regard to electronic data created by application programs which process financial,
accounting and billing information, all electronic data files, including prior drafts, deleted
files and file fragments, containing information about or related to:
[insert detail]

g. All files, including prior drafts, deleted files and file fragments, containing information
from electronic calendars and scheduling programs regarding or related to:
[insert detail]
h. All electronic data files, including prior drafts, deleted files and file fragments about or
related to:
[insert detail]
2. Online Data Storage on Mainframes and Minicomputers: With regard to online storage
and/or direct access storage devices attached to your clients {clients} mainframe computers
and/or minicomputers: they are not to modify or delete any electronic data files, deleted files and
file fragments existing at the time of this letters delivery, which meet the definitions set forth in
this letter, unless a true and correct copy of each such electronic data file has been made and
steps have been taken to assure that such a copy will be preserved and accessible for purposes
of this litigation.
3. Offline Data Storage, Backups and Archives, Floppy Diskettes, Tapes and Other
Removable Electronic Media: With regard to all electronic media used for offline storage,
including magnetic tapes and cartridges and other media that, at the time of this letters delivery,
contained any electronic data meeting the criteria listed in paragraph 1 above: Your client {clients}
is {are} to stop any activity that may result in the loss of such electronic data, including rotation,
destruction, overwriting and/or erasure of such media in whole or in part. This request is intended
to cover all removable electronic media used for data storage in connection with their computer
systems, including magnetic tapes and cartridges, magneto-optical disks, floppy diskettes and all
other media, whether used with personal computers, minicomputers or mainframes or other
computers, and whether containing backup and/or archive data sets and other electronic data, for
all of their computer systems.
4. Replacement of Data Storage Devices: Your client {clients} is {are} not to dispose of any
electronic data storage devices and/or media that may be replaced due to failure and/or upgrade
and/or other reasons that may contain electronic data meeting the criteria listed in paragraph 1
above.

162

5. Fixed Drives on Stand-Alone Personal Computers and Network Workstations: With

regard to electronic data meeting the criteria listed in paragraph 1 above, which existed on fixed
drives attached to stand-alone microcomputers and/or network workstations at the time of this
letters delivery: Your client {clients} is {are} not to alter or erase such electronic data, and not to
perform other procedures (such as data compression and disk de-fragmentation or optimization
routines) that may impact such data, unless a true and correct copy has been made of such
active files and of completely restored versions of such deleted electronic files and file fragments,
copies have been made of all directory listings (including hidden files) for all directories and
subdirectories containing such files, and arrangements have been made to preserve copies
during the pendency of this litigation.
6. Programs and Utilities: Your client {clients} is {are} to preserve copies of all application
programs and utilities, which may be used to process electronic data covered by this letter.
7. Log of System Modifications: Your client {clients} is {are} to maintain an activity log to
document modifications made to any electronic data processing system that may affect the
systems capability to process any electronic data meeting the criteria listed in paragraph 1
above, regardless of whether such modifications were made by employees, contractors, vendors
and/or any other third parties.
8. Personal Computers Used by Your Employees and/or Their Secretaries and Assistants:
The following steps should immediately be taken in regard to all personal computers used by your
clients {clients} employees and/or their secretaries and assistants.
a. As to fixed drives attached to such computers: (i) a true and correct copy is to be made of
all electronic data on such fixed drives relating to this matter, including all active files and
completely restored versions of all deleted electronic files and file fragments; (ii) full
directory listings (including hidden files) for all directories and subdirectories (including
hidden directories) on such fixed drives should be written; and (iii) such copies and
listings are to be preserved until this matter reaches its final resolution.
b. All floppy diskettes, magnetic tapes and cartridges, and other media used in connection
with such computers prior to the date of delivery of this letter containing any electronic
data relating to this matter are to be collected and put into storage for the duration of this
lawsuit.
9. Evidence Created Subsequent to This Letter: With regard to electronic data created
subsequent to the date of delivery of this letter, relevant evidence is not be destroyed and your
client {clients} is {are} to take whatever steps are appropriate to avoid destruction of evidence.
In order to assure that your and your clients {clients} obligation to preserve documents and
things will be met, please forward a copy of this letter to all persons and entities with custodial
responsibility for the items referred to in this letter.
Sincerely, etc.

163

March 17, 2010

Ms. Teresa Dubose
Claims Management, Inc.
P.O. Box 1288
Bentonville, AR 72712
RE:

Our Client:
Claim:
Accident Location:

Walmart Supercenter Store #776

3010 East 23rd Avenue North
Fremont, NE 68025

Date of Accident:
Dear Ms. Dubose:
By this letter, Wal-Mart is hereby given notice not to destroy, conceal or alter any paper
or electronic files and other data generated by and/or stored on your clients computers
and storage media (e.g., hard disks, floppy disks, backup tapes), or any other electronic
data, such as voice mail, video surveillance tapes, and photographs, including digital and
hard copies. As you know, Wal-Marts failure to comply with this notice can result in
severe sanctions being imposed by the Court and liability in tort for spoliation of
evidence or potential evidence.
Through discovery we expect to obtain from Wal-Mart a number of documents and
things, including files stored on its computers and computer storage media, the
surveillance tapes from the date of the accident, any accident reports or incident reports,
maintenance logs, photos, and any and all other relevant documents. Enclosed is a draft
of the Complaint we intend to file early next week. As part of our initial discovery
efforts, you will receive initial interrogatories and requests for documents and items.
In order to avoid spoliation, you will need to provide the data requested on the original
media. Do not reuse any media to provide this data. Electronic documents and the
storage media on which they reside contain relevant, discoverable information beyond
that which may be found in printed documents. Therefore, even where a paper copy
exists, we will seek all documents in their electronic form along with information about

164

Ms.TeresaDubose 2
March18,2010

those documents contained on the media. We also will seek paper printouts of only those
documents that contain unique information after they were printed out (such as paper
documents containing handwriting, signatures, marginalia, drawings, annotations,
highlighting and redactions) along with any paper documents for which no corresponding
electronic files exist. Courts have made it clear that all information available on
electronic storage media is discoverable, whether readily readable (active) or deleted
but recoverable.
Evidence Created Subsequent to This Letter: With regard to electronic data created
subsequent to the date of delivery of this letter, relevant evidence is not to be destroyed
and Wal-Mart is to take whatever steps are appropriate to avoid destruction of evidence.
In order to assure that Wal-Marts obligation to preserve documents and things will be
met, please forward a copy of this letter to all persons and entities with custodial
responsibility for the items referred to in this letter. If you wish to discuss this claim,
please give me a call.
Sincerely,

Honest Hank
Attorney at Law

XXX:xx
Enclosure

165

As you may be aware, my law firm represents XXXXXXXX as a result of personal injuries
resulting from an accident which occurred on XXX in XXXX. We specifically request that the
following evidence be maintained and preserved and not be destroyed, modified, altered,
repaired, or changed in any matter:
1.

The tractor and trailer involved in this accident.

2. Bills of lading for any shipments transported.

3. Any oversized permits or other applicable permits or licenses covering the vehicle or load
on the day of the accident.
4. The daily logs for the day of the accident and the eight day period preceding the accident.
5. The daily inspection reports for the day of the accident and the eight day period preceding
the accident.
6. Daily inspection reports for the tractor and trailer involved in this accident for the day of
the accident and the eight day period preceding this accident.

7. Maintenance, inspection, and repair records or work orders on the tractor and the trailer
for the day of the accident and for the six month period preceding the accident.
8. Annual inspection report for the tractor and trailer covering the date of the accident.
9.

The complete drivers qualification file, including but not limited to:
a.
b.
c.
d.
e.
f.
g.
h.
i.

application for employment

CDL license
drivers certification of prior traffic violations
drivers certification of prior accidents
drivers employment history
inquiry into drivers employment history
pre-employment MVR
annual MVR
annual review of driver history

166

j. certification of road test

k. medical examiners certificate
l. drug testing records
m. HAZMAT or other training documents
10.

Photographs of the vehicles involved in this accident or the accident scene.

11.

Any post-accident alcohol and drug testing results

12. Any lease contracts or agreements covering the tractor or trailer involved in this
accident.
13.

Any interchange agreements regarding the tractor or trailer involved in this accident.

14. Any data or printout from on-board recording devices, including but not limited to ECM
(electronic control module), any on-board computer, tachograph, trip monitor, trip recorder, trip
master, or other recording device for the day of the accident and the six month period preceding
the accident.
15. Any post-accident maintenance, inspection, or repair records or invoices in regard to the
tractor and trailer.
16. Any weight tickets, fuel receipts, hotel bills, or other records of expenses regarding the
driver or the tractor or trailer involved in the collision for the day of the accident and the eight
day period preceding the accident.

17. Any trip reports or dispatch records regarding the driver or the tractor or trailer involved
in this collision for the day of the accident and the eight day period preceding this accident.
18. Any e-mails, electronic messages, letters, memos, or other documents concerning this
accident.
19. The accident register maintained by the motor carrier as required by federal law for the
one year period preceding this accident.
20.

Any drivers manuals, guidelines, rules or regulations given to drivers.

21. Any reports, memos, notes, logs or other documents evidencing complaints about the
driver.

167

22. Any DOT or PSC reports, memos, notes or correspondence concerning Chip P. Bledsoe
or the tractor or trailer involved in this accident.
In regard to the tractor and trailer involved in this incident, we would like to set up a mutually
convenient time for our expert to inspect, examine, and conduct tests on the unit. We
specifically request that you make no repairs or adjustments to the tractor or trailer until this
inspection is completed. I must have a response within the next ten (10) days.

168

SAMPLE Spoliation Brief and Memo in Support

169

Case 2:03-cv-00294-DAK-BCW

Document 778

Filed 09/25/2006

Page 1 of 3

Brent O. Hatch (5715)

Mark F. James (5295)
HATCH, JAMES & DODGE, PC
10 West Broadway, Suite 400
Salt Lake City, Utah 84101
Telephone: (801) 363-6363
Facsimile: (801) 363-6666

Robert Silver (admitted pro hac vice)

Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, New York 10504
Telephone: (914) 749-8200
Facsimile: (914) 749-8300

Stuart H. Singer (admitted pro hac vice)

BOIES, SCHILLER & FLEXNER LLP
401 East Las Olas Boulevard Suite 1200
Ft. Lauderdale, Florida 33301
Telephone: (954) 356-0011
Facsimile: (954) 356-0022

Stephen N. Zack (admitted pro hac vice)

BOIES, SCHILLER & FLEXNER LLP
Bank of America Tower Suite 2800
100 Southeast Second Street
Miami, Florida 33131
Telephone: (305) 539-8400
Facsimile: (305) 539-1307

Attorneys for The SCO Group, Inc.

_________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

SCOS MOTION FOR RELIEF

FOR IBMS SPOLIATION OF
EVIDENCE

v.

Case No. 2:03CV0294DAK

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Defendant/Counterclaim-Plaintiff.

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. (SCO), for the reasons set
forth in the Memorandum in Support of Its Motion For Relief for IBMs Spoliation of Evidence
moves this Court to (1) enter an order precluding IBM from contesting that it relied on AIX and
Dynix/ptx source code in making contributions to Linux development, and (2) impose an
170

Case 2:03-cv-00294-DAK-BCW

Document 778

Filed 09/25/2006

Page 2 of 3

adverse-inference instruction against IBM, consistent with the common-sense and wellestablished principle that a party who has notice that evidence is relevant to litigation and who
proceeds to destroy it is more likely to have been threatened by that evidence than a party in the
same position who does not destroy the evidence.
DATED this 25th day of September, 2006.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
By:__/s/Brent O. Hatch______________
Counsel for The SCO Group, Inc.

2
171

Case 2:03-cv-00294-DAK-BCW

Document 778

Filed 09/25/2006

Page 3 of 3

CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and
correct copy of the foregoing SCOs Motion For Relief for IBMs Spoliation of Evidence was
served on Defendant/Counterclaim-Plaintiff International Business Machines Corporation on the
25th day of September, 2006 by the Courts CM/ECF system or by U.S. Mail to:

David Marriott, Esq.

Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Donald J. Rosenberg, Esq.
1133 Westchester Avenue
White Plains, New York 10604
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
1200 Gateway Tower West
15 West South Temple
Salt Lake City, Utah 84101-1004

_____/s/ Brent O. Hatch_________________

3
172

173

TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. MEDICAL HISTORY: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. PROCEDURAL HISTORY: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C. THE MOTION LEADING TO THIS APPEAL: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

RELEVANT STATUTES AND REGULATIONS . . . . . . . . . . . . . . 10

POINT I
THE LOSS OR DESTRUCTION OF THE FETAL MONITOR STRIPS
WAS WILLFUL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

POINT II
PROOF OF WILLFULNESS IS NOT ESSENTIAL TO STRIKE A SPOLIATORS
PLEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

POINT III
ALL OF THE TESTS TO MEASURE THE WHETHER THE DEFENDANTS
SPOLIATION WARRANTS STRIKING THEIR PLEADING, HAVE BEEN MET
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

POINT IV
THE COURT BELOW ERRED IN FINDING THAT THE SPOLIATION HEREIN WAS
NOT SO PREJUDICIAL AS TO WARRANT STRIKING THE DEFENDANTS
ANSWER, AND IN LEAVING THE PLAINTIFFS REMEDILESS . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ii

174

TABLE OF AUTHORITIES
CASES:
Cabasso v. Goldberg, 288 A.D.2d 116, 733 N.Y.S.2d 47 (1st Dept, 2001) . . . . . . . . . . . . . . . . 16
Christian v City of New York, ___ A.D.2d ___, 703 N.Y.S.2d 5 . . . . . . . . . . . . . . . . . . . . . . . 11
DiDomenico v. C&S Aeromatik, 52 A.D.2d 41 (2nd Dept. 1998) . . . . . . . . . . . . . . . . . 14, 16, 19
Fada Industries, Inc. v. Falchi Building Co., L.P., 189 Misc.2d 1, 730 N.Y.S.2d 827 (N.Y. Sup.
06/22/2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Goldman v. Gateway Toyota, 283 A.D.2d 457, 724 N.Y.S.2d 630 (2001) . . . . . . . . . . . . . . . . 16
Hartford Fire Ins. Co. v. Regenerative Bldg. Constr, 271 A.D.2d 862, 863, 706 N.Y.S.2d 236
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Healey v. Firestone Tire & Rubber Co., 212 A.D.2d 351, rev=d on other grounds 87 N.Y.2d 596
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Kirkland v. New York City Housing Authority, 236 A.D.2d 170 (1st Dept., 1997) . . . 14, 17, 19
Klein v. Seenauth. 180 Misc. 2d 213, 687 N.Y.S.2d 889. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Lane v. Fisher Park Lane Co., 276 A.D.2d 136. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Liz v. William Zinsser & Co., 253 A.D.2d 413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21
Long Island Diagnostic Imaging v. Stoney Brook Diagnostic Imaging 286 A.D.2d 320, 728 N.Y.S.2d
781 (2nd Dept., 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp., 221 A.D.2d 243 (2nd
Dept., ___) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 21
New York Cent. Mutual Fire Ins. Co. v. Turnerson's Elec., Inc., ___ A.D.2d ___, 721 N.Y.S.2d 92
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
New York Central Mutual Fire Insurance Company v. Turnerson's Electric Inc., 280 A.D.2d 652, 721
N.Y.S.2d 92 (2nd Dept., 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Puccia v Farley, 261 AD2d 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
iii

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Roman v North Shore Orthopedic Assn., 271 A.D.2d 669 (2nd Dept., 2000) . . . . . . . . . . . . . . 16
Romano v Scalia and DeLucia Plumbing, ___AD2d ____ (2nd Dept., 2001) . . . . . . . . . . . . . . . 16
Sage Realty Corp. v. Proskauer Rose LLP, 275 A.D.2d 11 . . . . . . . . . . . . . . . . . . . . . . . . 11, 16
Squiteri v. City of New York, 248 A.D.2d 201 (1st Dept., 1998) . . . . . . . . . . . . . . . . . 14, 19, 20
Stroebe v. Martin, 272 A.D.2d 318, 272 A.D.2d 318, 707 N.Y.S.2d 882 (1st Dept., 2000) . . . . 16
Vaughn v. City of N.Y., 201 A.D.2d 556, 607, N.Y.S.2d 726 . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Velasquez vs. Brocorp, 283 A.D.2d 423, 723 N.Y.S.2d 870 (1st Dept. 2001) . . . . . . . . . . . . . . 16

STATUTES:
Education Law 6530, Definitions of Profession Misconduct, subdiv. 32 . . . . . . . . . . . . 10, 18
New York City Rules and Regulations, Title 10, Sec. 405.10(4) . . . . . . . . . . . . . . . . . . . . 10, 18

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STATEMENT OF FACTS
A. MEDICAL HISTORY:
Overview:

Brain-damaged infant DOMINICK BAGLIO was born at ST. JOHNS QUEENS

HOSPITAL on July 13, 1994, and, according to the newborn hospital chart, was discharged from
the hospital as a normal term baby boy after only two days (R. 85).
The principal issue in this case is whether DOMINICK suffered fetal distress during his
mothers labor, that required a cesarian section or other intervention that was not offered or
performed. The available hospital records provide no direct evidence of fetal distress. There are some
indirect indicia that there might have been fetal distress, but the incomplete documentation is
inadequate proof to allow plaintiffs experts to form opinions with the requisite medical certainty to
make out a prima facie case. There is no evidence showing when the possible distress began, the
character or degree of the distress, or the duration of the distress. These details are essential to prove
that the distress was sufficiently severe and prolonged to cause injury. Without complete records,
is impossible to prove (or disprove) malpractice, but the burden of proof is on the plaintiffs, so that
the plaintiffs lose when the lack of records makes proof impossible.. The singular reason for this lack
of proof, is that the defendant hospital either lost or destroyed the fetal monitor strips that document
the babys well-being during labor. The missing fetal monitor strips are the key to the case.

The fetal monitoring: From her time of arrival at the hospital until the delivery, the mother,
CARMELINA BAGLIO, was routinely put on a fetal heart monitor - a machine that detects and
records the fetal heart rate relative to the mothers uterine contractions, to assess how the baby is

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faring under the stresses of labor. There are characteristic patterns to the babys heartbeat that are
printed out by the fetal monitor machine, which indicate if the baby is doing well or poorly. If the fetal
monitor shows alarming heartbeat patterns, medical intervention, such as oxygenating the mother or
delivering the baby by cesarian section, may be necessary to prevent brain damage to the baby (R. 1213, 356-357). The fetal monitor generates a paper strip, or tape, that looks somewhat like an EKG
strip, as a permanent objective record of the readings (R. 12-13, 356-357).
According to the mothers hospital record (R.49-84), the fetal monitoring ran for about ten
hours, from admission to the hospital (3 a.m.) until delivery (1:17 p.m.). The fetal monitor machine
generates its paper strip record at the standard rate of three centimeters per minute (slightly more than
five feet per hour), so there should be a paper tape approximately fifty feet long documenting
DOMINICK BAGLIOs heartbeat during the last ten hours before his birth. By law, the fetal monitor
tracings must be retained and preserved at least until the infant reaches his nineteenth birthday.

The delivery: DOMINICK was delivered using obstetrical forceps to pull the babys head out of
the birth canal (R. 74). Forceps are not used casually; they are used only if there is fetal distress (R.
13, 357). Nothing in the hospital record explains why forceps were needed in this case (R. 13, 357).
However, the doctors note for the delivery describes the [umbilical] cord around neck x 4 tight meaning that the babys umbilical cord looped around his neck four times (R. 13, 357), possibly
kinking up, and/or strangling the baby like a hangmans noose. If the umbilical cord was kinked, or
strangled this baby in the womb, it would create characteristic patterns of fetal asphyxia which would
be reflected on the fetal monitoring (R. 13, 357). Therefore, the delivery note creates an expectation
that the fetal monitor strips would document fetal distress, that was not recognized at the time.
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However, without the fetal monitor strips, it is impossible for plaintiff to make a prima facie case,
as it is impossible to prove the degree, character, or duration, of the distress., or exactly when or how
it should have been treated. This underscores the critical nature of the fetal monitor strips - the only
objective record of the babys condition during labor..

Conflicting evidence: Blatant disparities exist between what is found in the limited available medical
records surrounding the birth, and the reality of the child. DOMINICKs mother, CARMELINA
BAGLIO, testified that her baby didnt cry when he was born (R. 181), and that he was pale and still
in the newborn nursery (R. 290-201). The mothers sworn testimony is both credible and consistent
with the subsequent developments, but is irreconcilably inconsistent with the Apgar scores and
observations recorded in the newborns chart. Of a possible maximum Apgar score of 10 points,
consisting of the sum of up to two points for each of five different criteria, DOMINICKs birth
records show high-normal Apgar scores of 8 at one minute and 9 at five minutes after birth (R. 91).
The Apgar scores recorded by the defendants are impossible, if the mothers testimony that the
newborn didnt cry after delivery, is believed. The baby was given one Apgar point (out of a possible
maximum of two) for his cry, representing a weak cry (R. 105). If the baby had no cry at all, as the
mother swore (R. 181), that part of the Apgar score should have been assigned a zero. Likewise, at
5 minutes after the birth, the baby was given perfect scores of two points each for muscle tone and
color (R. 105), which is incompatible with the mothers testimony that the baby was pale and still in
the nursery (R. 290-291).
Of course, the Apgar score is entirely subjective, dependent on the accuracy of the examiners
assessments, just as the mothers observations are. All of the handwritten narrative descriptions of
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the labor (R. 71-72) and the appearance of the baby (R. 89-94), are likewise subjective, as they are
filtered through the eyes and the perspectives of the observers.
For this reason, and the many additional reasons that will immediately follow, that objective
proof, namely, the fetal monitor strips, is essential to break the impasse of contradicting factual
assertions, and to prove that the baby experienced fetal distress prior to his birth.

Subsequent developments: From the time he came home from the hospital, the baby was shaking
(R. 212). At age one week, he was taken back to the hospital screaming (R. 212). These episodes
were seizures, and little DOMINICK was eventually diagnosed with cerebral palsy. DOMINICK has
a seizure disorder (R. 243-244) requiring anti-convulsant medications (R.245, 249). His neuromuscular problems were apparent at age 3, in his impaired gait. When he walked, he could not swing
his arms back and forth like a normal child, holding them still by his sides (R. 235) He needed
orthotics on his legs (R. 241), and was found to have hearing problems (R. 256). At age 3, he still
did not speak (R. 234). His coordination, speech, hearing, and cognitive delays posed challenges
beyond the abilities of the Special Education program in the public schools (R. 237-239), so that he
now goes to a United Cerebral Palsy School (R. 237) instead. He needs speech therapy three times
a week, and both occupational and physical therapy twice a week each (R. 253). Certainly, the
prognosis for his ability to function as a normal, independent adult, is bleak.
The cause of these terrible problems is very much in dispute. The mothers labor and delivery
record is inadequate and incomplete, but what is there shows nothing alarming per se. These records,
at face value, will not support a prima facie case.

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The irreconcilable inconsistencies between the delivery and newborn records on the one hand,
and the mothers testimony and the subsequent course of the childs development on the other, make
objective records of the babys condition in the hours leading up to the birth, (i.e., the fetal monitor
strips) of crucial and dispositive importance

B. PROCEDURAL HISTORY:
On March 10, 1997, as part of the pre-suit investigation, plaintiffs attorney requested that
the hospital supply the infants complete medical records, including the fetal monitor strips (R. 309).
At first, the hospital produced some normal fetal monitor strips, which displayed reassuring heart
patterns (R. 310-353). CARMELINA BAGLIOs name was hand-written on the strips, giving the
illusion that these were the plaintiffs; however, simple analysis proved that the strips that the hospital
produced were not CARMELINA BAGLIOs, notwithstanding the labeling to the contrary.1
On June 17, 1997, the plaintiffs attorney wrote to the hospitals Medical Records
Department, protesting that the strips that had been supplied were not of this labor and delivery (R.
354).
The lawsuit was started on July 25, 1997 (Summons, R. 20-21).

Throughout this litigation, the hospital never claimed that the strips it originally produced are the
bona fide tracings from Mrs. BAGLIOs labor.
There are multiple tip-offs that prove that these tapes (R. 310-353) are not of the plaintiff.
For instance, a machine-generated date and time stamp appears in fine print on almost every page.
The date is 12/01/04. (The correct date would be 7/13/94-7/14/94.) Similarly, the time of day recorded on
the strips is wildly off. The tape supplied is interrupted after several hours while the mother had a
sonogram (R. 321). (There was no mid-labor sonogram in Mrs. BAGLIOs labor.) The tape also has notes
showing where the mother was given oxygen (R. 321); Mrs. BAGLIO was never given oxygen during her
labor. There are other major discrepancies, too.
It appears that someone elses normal tracings were supplied, with the plaintiffs name
inscribed, in order to mislead us.

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The Summons & Complaint crossed with a letter dated July 30, 1997, wherein the hospitals
Director of Medical Information Services confirmed although fetal monitoring had indeed been
performed, the hospital was unable to find the strips, concluding that should we locate them, I will
contact you immediately. (R. 355).
Five years later, the missing fetal monitor strips still have not been turned over.
Plaintiff moved to strike the defendants Answer for spoliating this crucial evidence, but
withdrew that initial motion when the hospital promised to produce the fetal monitor tracings if they
were found, and agreed to produce a person knowledgeable about their procedures for storing such
records, and the search to find the missing strips, for deposition (R. 16).
On May 31, 2001, the hospitals chosen witness, Ms. Maritza Payamps of the Medical
Records Department, was deposed to explain the loss of the fetal monitor strips. Ms. Payamps
testified that the fetal monitor strips are supposed to be stored with the mothers chart (R. 373); that
in sixteen years in the Medical Records Department; that she had never encountered the loss of fetal
monitor strips in any other case (R. 382); and she had no explanation for their loss (R. 16).
Ms. Payamps deposition revealed glaring inadequacies in the hospitals efforts made to find
these missing tracings. No inquiry as to what happened to the fetal monitor strips was ever made of
the doctors or nurses actually involved in this labor or delivery (R. 405). No inquiry of the medical
records personnel who handled DOMINICK BAGLIOs records at the time of preparation was made
(R. 405), nor of the hospitals Risk Management Department, either (R. 405).
Thereafter, plaintiff demanded further discovery in an effort to locate the missing fetal monitor
tracings, get secondary evidence or their contents, or explain their loss (R. 412-415, 462):

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1. Any records of the fetal monitoring that were stored in an electronic or computerized
medium;
2. A copy of the relevant Joint Commission Accreditation of Hospitals standards for the
completion of incomplete hospital records;
3. A copy of the hospitals computer program for record keeping, so as to see if the missing
fetal monitor tracings had been computerized;
4. Inspection of the unfiled fetal monitor strips which Ms. Payamps testified were stored
in a small box, in order to see if DOMINICK BAGLIOs lost tracings were in that
box;
5. The depositions of Records Room employee Irene Ngai (who assembled the babys chart)
and Risk Managements Azarean Cameron (who did the original search for the
missing records);
6. A copy of any deficiency report that details what portions of a medical record are
missing; and
7. The identity of the unidentified Obstetrics Department representative, who represented to
the Medical Records Department that the Obstetrics Department did not have the
missing records.
Except for identifying one name, the hospital never moved for a protective order against this
discovery, but simply stated boiler plate objections and refused compliance (R. 433-434).
A Compliance Conference was held on February 27, 2001. At the Compliance Conference,
the court so ordered a stipulation that directed the depositions of a Risk Manager by April 31,
2001, and defendant DR. CUOCCO by June 29, 2001, and the plaintiff was required to put the case
on the calendar by August 31, 2001 (R. 421).
The courts tight deadline to put the case on the calendar by August 31, 2001, forced
plaintiffs attorney to do so without obtaining six of the seven items of discovery listed above.

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C. THE MOTION LEADING TO THIS APPEAL:

On July 3, 2001, after the defendants failed to supply six of the seven aforesaid items of
documentary discovery (R. 412-415, 462), but prior to putting the case on the calendar, plaintiffs
moved to strike the hospitals Answer for these failures of discovery, and particularly, for the
spoliation of the crucial fetal monitor tracings.
In support of the motion, plaintiff submitted the Expert Affidavit of board-certified
obstetrician/gynecologist Max Lilling, M.D. Dr. Lilling attested that in a case alleging mistreated fetal
distress:
... the fetal monitor strips are needed to assess the presence and duration of the fetal
distress. The loss of the fetal monitoring strips deprives one of the opportunity to
assess these factors... [and also] takes away the ability to objectively evaluate the true
status of the infant where there are alleged defenses.
Dr. Lilling further attested that:
This record contains very little information concerning fetal well-being or lack
thereof. The record does, however, indicate (1) a forceps-assisted delivery, and (2)
that the umbilical cord was tightly around the infants neck 4 times at the time of
delivery. These factors together indicate a likelihood of fetal distress. Forceps delivery
is only done with a significant indication, generally related to a need to remove the
child from the birth canal because of evidence of fetal distress. Moreover, when the
umbilical cord is tightly around the infants neck, the cord, which is the infants
oxygen supply, becomes crimped, and the child would be expected to show
indications of fetal distress on the fetal monitoring strips. The progress notes in this
case are scant and unhelpful in assessing the infants condition, and give no indication
why a forceps delivery was undertaken, or what impact the cord being tightly around
the infants neck had on fetal well-being,. The fetal monitoring strips would give fairly
conclusive evidence as to the presence of fetal distress, or lack thereof. Without the
fetal monitoring strips, one could only speculate regarding the degree, duration, and
impact of fetal distress in this case.
It is therefore my opinion within a reasonable degree of obstetrical certainty, that
[the loss of the fetal monitor strips] significantly and grossly prejudices [the
plaintiffs] ability to fully evaluate and present this case. (R. 12-13) [emphasis
added.]
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In a further Medical Affirmation submitted in a reply, Dr. Lilling added that:

In 1994, many hospitals in the New York City region backed up fetal monitoring
strips on an electronic medium, i.e., a computer disk. (R. 461)

The defense did not submit any contrary experts affirmation, did not deny the loss of the fetal
monitor strips, did not explain the loss of the fetal monitor strips, did not dispute that they were
necessary to evaluate the extent or duration of fetal distress, did not dispute the inference that a
backup of the data may exist on a computer disk (but also did not search for the computer disk), and
did not deny the fatal effect that the loss of the strips caused.
Despite this uncontradicted demonstration of significant and gross prejudice to the plaintiff,
and based solely on the motion papers, without conducting a Vaughn hearing (named for Vaughn
v. City of N.Y., 201 A.D.2d 556, 607 N.Y.S.2d 726) to explore the circumstances or significance of
the spoliation, the lower court found, that while the fetal monitoring strips are clearly significant to
the plaintiffs case, there is other evidence that is available [that would compensate for the loss of the
strips]. Indeed, the plaintiffs medical records and progress notes are included in the case file. Thus
the court cannot conclude that the loss of the strips prejudices the plaintiff as to warrant the drastic
sanction of striking St. Johns [Hospitals] answer. (R. 5-6). No sanction whatsoever was imposed,
and no compensating remedy was provided. The plaintiffs motion was denied.
Plaintiff appeals from that Order.

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RELEVANT STATUTES AND REGULATIONS

New York City Rules and Regulations, Title 10, Sec. 405.10(4):
Medical records shall be retained in their original or legally reproduced form for a period of at least
six years from the date of diskharge, or three years after the patients age of majority (18 years),
whichever is longer...

Education Law 6530, Definitions of Profession Misconduct, subdiv. 32"

Failing to maintain a record for each patient which accurately reflects the evaluation and treatment
of the patient. Unless otherwise provided by law, all patient records must be maintained for at least
six years. Obstetrical records and records of minor patients must be retained for at least six years, and
until one year after the minor patient reaches the age of eighteen years.

10

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POINT I

THE LOSS OR DESTRUCTION OF THE FETAL MONITOR STRIPS

WAS WILLFUL
The loss of critical evidence can prevent a litigant from meeting their burden of proof and cost
them the relief sought. An act of spoliation gives one party unfair advantage over the other in
litigation, impeding the search for truth, and knocking the scales of justice out of balance. That is
what happened here.
In the court below, the hospital did not deny the loss or destruction of the fetal monitor strips
herein, or the devastating prejudicial effect that resulted. No benign or innocent explanation for the
absence was offered, and there was no denial that the loss of this crucial evidence would eviscerate
the plaintiffs case. The essential factual premises of the plaintiffs motion were unchallenged.
Rather, the defense simply argued that the plaintiff could not prove that the loss or destruction
of the strips was malicious, willful, or contumacious. Since the mechanism by which the strips
disappeared is unknown, the defense could not, and did not, affirmatively contend that it was
accidental or innocent, but instead insisted that it was the plaintiffs burden to show intentional evil,
if the defense was to be punished (R. 426-429). According to the defense, absent proof of malicious
intent to hide or destroy evidence, an admitted spoliator escapes scot-free.
Although the plaintiffs necessarily have no direct proof of how the fetal monitor strips were
lost or destroyed, malicious or wrongful intent can be inferred from the facts surrounding the
spoliation, and may be proved circumstantially, by the nature and timing of the conduct and events.
Sage Realty Corp. v. Proskauer Rose LLP, 275 A.D.2d 11; Sonmez v. World on Columbus, supra;
cf., Christian v City of New York, ___ A.D.2d ___, 703 N.Y.S.2d 5.
11

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Here, there are many circumstances that prove willfulness.

The hospitals initial supply of someone elses tracings, that inexplicably had Mrs. BAGLIOs
name written onto them, would be suspicious enough, had it occurred in isolation. If the hospitals
spoliation was innocent, one would ordinarily expect a simple response candidly conceding that the
fetal monitor strips were lost. Instead, someone at the hospital wrote this mothers name on someone
elses normal tracings, and tried to pass them off as the plaintiffs. This was an obvious, affirmative
attempt to deceive .The seriousness of the attempted deception can only be realized when the crucial
nature of the lost tracings is fully appreciated; i.e., the missing fetal monitor strips are the key to the
case, the only document containing objective evidence of the pivotal issue - the babys condition
during labor. Only these strips can show the details of the fetal distress needed to prove the case.
But there is more.
After the attempted deception failed, and the unexplained loss was admitted, the hospital
failed to conduct a diligent, meaningful search for the missing tapes. The search effort described
by the hospitals chosen witness was superficial to the point of being empty lip service. No inquiry
was made of the obvious, key people who were involved in the target events at the time. (A detailed
list of those shortcomings appears in the Statement of Facts, at pages 6-7 , supra.). The gross
inadequacies in the search were compounded even further when the hospital blocked and refused the
plaintiffs documentary discovery requests that required actions designed to find the strips (R. 412415, 462), or back-up copies of the same data on computer disks (R. 461). Every step the hospital
took was deliberately designed to frustrate and impede any serious effort to find the missing strips.
Giving the defense the benefit of the doubt as to the initial loss of the strips, every action thereafter
was undeniably deliberate and intentional.
12

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An unmistakable picture of willfulness emerges.

13

189

POINT II
PROOF OF WILLFULNESS IS NOT ESSENTIAL
TO STRIKE A SPOLIATORS PLEADINGS

Although plaintiffs believe that wilfulness has been fully demonstrated not just by the loss of
the fetal monitor strips and the unexplained substitution of someone elses tracings mislabeled to give
the false appearance of being the plaintiffs, and further buttressed by the hospitals actions and
obstructions subsequent to the loss of these records, proof of willful intent is not a necessary element
to strike a spoliators pleadings. The evolving rule is Spoliator, beware! Klein v. Seenauth. 180
Misc. 2d 213, 687 N.Y.S.2d 889.
The unintentional loss of evidence, absent intentional destruction, can be just as fatal to a
litigant as if it were deliberate, so as to justify striking a pleading. DiDomenico, supra, Squiteri, supra
at 201-203. The court below explicitly recognized this. (Order Appealed From, R. 6).
Thus, this drastic sanction@ has been applied even if the destruction occurred through
negligence rather than willfulness, and even if the evidence was destroyed before the spoliator was
a party to litigation, provided it was on notice that the evidence might be needed for future litigation.
See, e.g., Kirkland v. New York City Housing Authority, 236 A.D.2d 170 (1st Dept. 1997) (dismissal
of third- party action appropriate where crucial evidence was negligently destroyed); accord, Healey
v. Firestone Tire & Rubber Co., 212 A.D.2d 351, rev=d on other grounds 87 N.Y.2d 596; see, also,
Squiteri v. City of New York, 248 A.D.2d 201 (1st Dept. 1998). A pleading may be struck absent
willful or contumacious conduct, depending on the extent of prejudice to a party and when necessary
as a "matter of elementary fairness" Puccia v Farley, 261 A.D.2d 83, 85; Kirkland, supra. Hartford
Fire Ins. Co. v. Regenerative Bldg. Const., 271 A.D.2d 862, 863, 706 N.Y.S.2d 236, quoting Puccia,
14

190

supra; Lane v. Fisher Park Lane Co., 276 A.D.2d 136. Appropriate remedial actions include striking
the pleadings. New York Cent. Mutual Fire Ins. Co. v. Turnerson's Elec., Inc., ___ A.D.2d ___, 721
N.Y.S.2d 92 [holding that where a party destroys key physical evidence "such that its opponents are
' prejudicially bereft of appropriate means to confront a claim with incisive evidence,"' the spoliator
may be punished by the striking of its pleading; Squiteri, supra, at 202- 203 ["when a party alters,
loses or destroys key evidence before it can be examined by the other party's expert, the court should
dismiss the pleadings of the party responsible for the spoliation"]; Mudge, Rose, Guthrie, Alexander
& Ferdon, supra at 493 [dismissing plaintiffs claim due to its "negligent loss of a key piece of
evidence which defendants never had an opportunity to examine"]; see, also, Liz v. William Zinsser
& Co., 253 A.D.2d 413.
Accordingly, proof of willfulness is not essential - nor should it be - as the important element
of spoliation is that it results in same prejudice, and requires the same remedial steps to restore
balance to the scales of justice, whether the spoliation was intentional or not.

15

191

POINT III

ALL OF THE TESTS TO MEASURE THE WHETHER THE DEFENDANTS

SPOLIATION WARRANTS STRIKING THEIR PLEADING, HAVE BEEN MET
The penalties for spoliation are separate and apart from the sanctions authorized by CPLR
'3126 for defiance of a court order directing discovery. A spoliator of key physical evidence is
properly punished by striking its pleadings. DiDomenico v. C&S Aeromatik, 52 A.D.2d 41 (2nd Dept.
1998); Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp., 221 A.D.2d
243 (2nd Dept., ___) [dismissal of complaint warranted where plaintiff negligently lost key piece of
evidence before defendants could examine it]; Velasquez vs. Brocorp, 283 A.D.2d 423, 723
N.Y.S.2d 870 (1st Dept. 2001); Goldman v. Gateway Toyota, 283 A.D.2d 457, 724 N.Y.S.2d 630
(2001) [complaint stricken for spoliation]; Cabasso v. Goldberg, 288 A.D.2d 116, 733 N.Y.S.2d 47
(1st Dept, 2001) [defendant=s answer stricken for spoliation of evidence]; Stroebe v. Martin, 272
A.D.2d 318, 272 A.D.2d 318, 707 N.Y.S.2d 882 (1st Dept., 2000) [complaint dismissed for
spoliation]; Sage Realty Corp. v. Proskauer Rose LLP, 275 A.D.2d 11 [plaintiff=s pleading stricken
for spoliation] (1st Dept., 2000) ; New York Central Mutual Fire Insurance Company v. Turnerson's
Electric Inc., 280 A.D.2d 652, 721 N.Y.S.2d 92 (2nd Dept., 2001) [complaint dismissed for
spoliation]; Roman v North Shore Orthopedic Assn., 271 A.D.2d 669 (2nd Dept., 2000) [defendant=s
third-party complaint dismissed for spoliation]; Romano v Scalia and DeLucia Plumbing, A.D.2d (2nd
Dept., 2001) [complaint dismissed for spoliation]; Long Island Diagnostic Imaging v. Stoney Brook
Diagnostic Imaging 286 A.D.2d 320, 728 N.Y.S.2d 781 (2nd Dept., 2001) [defendant=s counterclaims
and third-party claims stricken for spoliating billing records].

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Public policy demands, for obvious reasons, that a spoliator never be permitted to benefit from
its spoliation of evidence. The spoliator must bear the consequences of its own acts or omissions,
whether those were intentional or negligent, and suffer the consequences necessary to restore justice.
In some cases, a lesser penalty than striking of pleadings may satisfactorily bring the scales of justice
back into balance, but in this case, there is no way to do so except by striking the pleadings.2 The
long list of citations above shows that the striking of pleadings as a penalty for spoliation of evidence
is not anathema to either the First or Second Departments, because they recognize that permitting
a litigant to obtain any benefit from spoliation serves only to create an incentive that encourages more
spoliation in the future.
Conversely, imposing severe, negative consequences for spoliation creates a beneficial and
necessary disincentive to prevent spoliation and encourages the proper preservation of evidence that
is essential to our system of justice.
Applying the various tests espoused in these cases to the facts of this case, the plaintiffs= two
pre-suit letters to the hospital=s Medical Records Department (R. 309 and 354) prove that the hospital
was on actual notice that this evidence was crucial to the prosecution of this action even before
litigation was commenced. Therefore, the criteria for striking a pleading based on pre-litigation
notice, per Kirkland, supra, has been satisfied. At a minimum, the loss or destruction of that crucial

In Kirkland, infra, this Court suggested that the drastic remedy of striking a partys pleadings
might not be appropriate in a product liability action if the missing product could be reconstructed from
the manufacturers design plans. However, in the present action, the reconstruction of the fetal monitor
tracings or their contents from other sources is totally impossible. Those tracings show continuous,
moment-to-moment objective proof of the fetal hearbeat in relationship to the mothers uterine
contractions, which is not documented anywhere else in the existing records, and cannot be reconstructed
from any other source. This essential element of the plaintiffs case is totally precluded and lost forever,
due to the spoliation of the strips by the defendant Hospital.

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evidence despite advance knowledge of its importance, was negligent, and the supply of someone
else=s strips falsely labeled as Mrs. BAGLIO=s suggests an intentional and deliberate attempt to
mislead, that surely is Awillful and contumacious.@ This justifies striking the spoliator=s pleadings.
Applying the test of prejudice to the facts of this case, the statement by the plaintiff=s medical
expert that Awithin a reasonable degree of obstetrical certainty, [the loss of the fetal monitor strips]
significantly and grossly prejudices [the plaintiffs=] ability to fully evaluate and present this case,@ is
uncontested. Thus, gross and significant prejudice to the plaintiffs is established without dispute.
Applying the test of elemental fairness to the facts of this case, we reach the ultimate
question. Inevitably, the loss of these records must cause one side or the other to lose the case.
Who should that be? The newborn baby, who is non sui juris and blameless for his own awful
injuries, or the defendant who either negligently or wilfully lost or destroyed the records that would
prove (or disprove) the merits of the case, and then impeded all efforts to find them? The just
resolution of this question of fairness is easily and instantly resolved by looking to the statutory and
regulatory mandates of New York City Rules and Regulations, Title 10, Sec. 405.10(4) and
Education Law '6530, ADefinitions of Professional Misconduct@, subdiv. 32, both of which impose
the clear legal duty of preserving these records on the defendants, for the benefit of the plaintiffs use
in litigation (hence the implicit references to the statute of limitations in both), in addition to the duty
to avoid destruction of evidence imposed by the common law, obstruction of justice rules, and
ordinary ethics. The scales of justice overwhelmingly tilt in the infant=s favor, as he is utterly innocent
but nonetheless grossly prejudiced under any circumstances. The hospital was charged with the clear
statutory, regulatory, common law, and ethical duty of preserving the crucial fetal monitor records,

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and is responsible for their loss or destruction in violation of that duty, so that Aelemental fairness@
mandates that they, rather than the newborn, should suffer the consequences.

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POINT IV

THE COURT BELOW ERRED IN FINDING THAT THE SPOLIATION

HEREIN WAS NOT SO PREJUDICIAL AS TO WARRANT
STRIKING THE DEFENDANTS ANSWER,
AND IN LEAVING THE PLAINTIFFS REMEDILESS
Neonatal brain damage does not occur instantly It develops progressively over time. Proving
causal connection between malpractice and the infant=s brain injuries depends on demonstrating not
only abstract suggestions of fetal distress, but also on a showing the duration and depth of that
distress (R. 357). No secondary evidence exists that allows the plaintiffs to prove the duration and
depth of fetal distress without the fetal monitor strips. Although plaintiff=s expert attested to Aa
likelihood of fetal distress@ (R. 13, 357), without the strips he cannot assess either the depth or
duration of the presumed distress (R. 13, 357), which is indispensable to proving causation. The
spoliation of the fetal monitor strips leaves the plaintiffs with no evidence sufficient to make out a
prima facie case
The Order Appealed From (R. 5-6) adopted the authorities urged by the plaintiff that support
punishing a spoliator by striking its pleadings. DiDomenico, supra; Kirkland, supra. The lower court
also agreed that the unintentional loss of evidence, absent intentional destruction, could be just as
fatal to a litigant as if it were deliberate, so as to justify striking a pleading. DiDomenico, supra,
Squiteri v. City of N.Y., 248 A.D.2d 201 at 201-203, (R. 6). Nonetheless, plaintiffs= motion was
denied, based on the lower court=s unsupported sua sponte finding that Awhile the [lost] fetal
monitoring strips are clearly significant to the plaintiff=s case, there is other evidence that it available
[that makes up for the loss]. Indeed, plaintiff=s medical records and progress notes are included in the

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case file. Thus, the court cannot conclude that the loss of the strips prejudices the plaintiff [so] as to
warrant the drastic sanction of striking St. John=s Answer.@
Plaintiffs-Appellants contend that this finding is clear error. There is nothing whatsoever in
the Record on Appeal that supports the lower courts conclusion that the available Amedical records
and progress notes@ can possibly compensate for the lost fetal monitor strips. On the contrary, the
existent medical records and progress notes can not support a prima facie case. In their opposing
papers, the defense never suggested that the prejudice from the absence of the monitor strips could
be compensated or overcome through the use of other records. The plaintiffs= expert=s medical
affirmation showing Asignificant and gross prejudice@ was uncontradicted. If the case were to go to
trial, the defense would certainly emphasize the plaintiff=s complete inability to prove the depth or
duration of the presumed fetal distress to maximum advantage. The plaintiffs simply cannot make out
a prima facie case, far less a persuasive prima facie case, without this evidence. Indeed, given the
expert=s frank concession of Agross prejudice@ to his ability to evaluate and present the case, the
expert would be devastated on cross-examination, and would have to concede that any opinions on
causal connection were speculative. No adverse inference charge to the jury can fill the gaps in the
the necessary expert testimony that is lacking. The result would have to be a dismissal, or a
defendant=s verdict
As such, the court=s conclusion that the consequent prejudice would not be fatal, is utterly
unfounded and unsupported by the Record on Appeal..
ARemedial action is obligatory in instances in which the lost or destroyed evidence is crucial
to the determination of the key issue. Fada Industries, Inc. v. Falchi Building Co., L.P., 189
Misc.2d 1, 730 N.Y.S.2d 827 (N.Y. Sup. 06/22/2001), citing Squitieri v. City of New York, supra;
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Kirkland v. New York City Housing Authority, supra; Mudge, Rose, Guthrie, Alexander & Ferdon
v. Penguin Air Conditioning Corp., supra; Liz v. William Zinsser & Co., 253 A.D.2d 413. The court
below erred, as it extended no remedy to the prejudiced party, leaving a terrible harm unaddressed
and unpunished.
While striking a pleading is unquestionably a Adrastic remedy@, it is the only remedy that can
compensate for the Agross prejudice created by the loss of the fetal monitor strips. Here, the defense
clearly gains an immense, unfair advantage from their spoliation of crucial records, yet the plaintiff
was awarded no remedy to compensate for this massive wrong, forcing the plaintiff into the hopeless
position of having to try a case to a certain defeat.
While the court=s assessment of an appropriate penalty for spoliation is discretionary, that
exercise of discretion must have a proper foundation. It cannot be unsupported whimsy or caprice.
Here, there is no foundation for either the finding that other records compensated for the loss of the
fetal monitor strips, or the lower court=s refusal to penalize the spoliator, leaving the plaintiff
remediless despite the destruction of evidence that is fatal to the case.
Accordingly, the Order Appealed from is error, and should be reversed.

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CONCLUSION
The court below erred in finding that the plaintiff was not irreparably prejudiced by the loss
or destruction of the fetal monitor strips. There is powerful inferential proof that the spoliation was
willful, but even if it was unintentional, it was so negligent and so prejudicial as to warrant striking
the defendant=s pleading just the same. The spoliation will inevitably cost one side or the other a
certain loss at trial. As between the spoliator and the innocent baby, elemental fairness mandates the
loss be borne by the spoliator.
The Order Appealed From should be reversed.

Respectfully submitted,

___________________________
Mark R. Bower
The Law Offices of Mark R. Bower, P.C.
Appellate Counsel for Plaintiffs-Appellants

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SAMPLE Confidentiality & Nondisclosure

Agreement

200

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

THIS AGREEMENT, made this ____ day of ____________ (month), _____

(year), between _______________________, (hereinafter Disclosing Party), and
__________________________ (hereinafter Receiving Party).

BACKGROUND
The Disclosing Party and Receiving Party wish to discuss and exchange certain
items and information related to business programs, products, applications, systems,
components, technologies and business topics (the Invention) which the parties hereto
consider highly confidential and proprietary.

NOW THEREFORE, the parties hereto, intending to be legally bound in

consideration of the mutual covenants and agreements set forth herein, hereby agree as
follows:

1. DEFINITIONS
1.1.

Invention shall mean all information relating to business programs, products,

applications, systems, components, technologies and business topics.

1.2.

Confidential Information shall mean all information provided by Disclosing

Party with respect to the Invention regardless of whether it is written, oral, audio
tapes, video tapes, computer discs, machines, prototypes, designs, specifications,
articles of manufacture, drawings, human or machine readable documents.
Confidential Information shall also include all information related to the Invention

201

provided by Disclosing Party to Receiving Party prior to the signing of this

agreement. Confidential Information shall not include any of the following:
(a)

such information in the public domain at the time of the disclosure, or

subsequently comes within the public domain without fault of the Receiving
Party;

(b) such information which was in the possession of Receiving Party at the time
of disclosure that may be demonstrated by business records of Receiving
Party and was not acquired, directly or indirectly, from Disclosing Party; or
(c)

such information which Receiving Party acquired after the time of disclosure
from a third party who did not require Receiving Party to hold the same in
confidence and who did not acquire such technical information from
Disclosing Party.

1.3.

Disclosing Party shall mean the party disclosing information to the other
relating to the Invention.

1.4.

Receiving Party shall mean the party receiving information from the other
relating to the Invention.

2. USE OF CONFIDENTIAL INFORMATION

The Receiving Party agrees to:
(a) receive and maintain the Confidential Information in confidence;
(b) examine the Confidential Information at its own expense;
(c) not reproduce the Confidential Information or any part thereof without the
express written consent of Disclosing Party;

202

(d) not, directly or indirectly, make known, divulge, publish or communicate the
Confidential Information to any person, firm or corporation without the
express written consent of Disclosing Party;
(e) limit the internal dissemination of the Confidential Information and the
internal disclosure of the Confidential Information received from the
Disclosing Party to those officers and employees, if any, of the Receiving
Party who have a need to know and an obligation to protect it;
(f)

not use or utilize the Confidential Information without the express written
consent of Disclosing Party;

(g) not use the Confidential Information or any part thereof as a basis for the
design or creation of any method, system, apparatus or device similar to any
method, system, apparatus or device embodied in the Confidential
Information unless expressly authorized in writing by Disclosing Party; and
(h) utilize the best efforts possible to protect and safeguard the Confidential
Information from loss, theft, destruction, or the like.

3. RETURN OF CONFIDENTIAL INFORMATION

All information provided by the Disclosing Party shall remain the property of the
Disclosing Party. Receiving Party agrees to return all Confidential Information to
Disclosing Party within 15 days of written demand by Disclosing Party. When the
Receiving Party has finished reviewing the information provided by the Disclosing Party
and has made a decision as to whether or not to work with the Disclosing Party,
Receiving Party shall return all information to the Disclosing Party without retaining any
copies.

203

4. NON-ASSIGNABLE
This agreement shall be non-assignable by the Receiving Party unless prior written
consent of the Disclosing Party is received. If this Agreement is assigned or otherwise
transferred, it shall be binding on all successors and assigns.

5. GOVERNING LAW
This Agreement and all questions relating to its validity, interpretation, performance and
enforcement (including, without limitation, provisions concerning limitations of actions),
shall be governed by and construed in accordance with the laws of the State of
_______________ (State), notwithstanding any conflict-of-laws doctrines of such state or
other jurisdiction to the contrary, and without the aid of any canon, custom or rule of law
requiring construction against the draftsman.

6. No License
Neither party does, by virtue of disclosure of the Confidential Information, grant, either
expressly or by implication, estoppel or otherwise, any right or license to any patent,
trade secret, invention, trademark, copyright, or other intellectual property right.

7. Binding Nature of Agreement

This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, personal representatives, successors and assigns.

8. Provisions Separable

204

The provisions of this Agreement are independent of and separable from each other, and
no provision shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other or others of them may be invalid or unenforceable in whole
or in part.

9. ENTIRE AGREEMENT
This Agreement sets forth all of the covenants, promises, agreements, conditions and
understandings between the parties and there are no covenants, promises, agreements or
conditions, either oral or written, between them other than herein set forth. No
subsequent alteration, amendment, change or addition to this Agreement shall be binding
upon either party unless reduced in writing and signed by them.

10. Arbitration
Any controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be resolved by arbitration conducted by the Commercial Division of the
American Arbitration Association and in accordance with the rules thereof, conducted in
Fargo, North Dakota, or in any other convenient forum agreed to in writing by the
parties. Any arbitration award shall be final and binding, and judgment upon the award
rendered pursuant to such arbitration may be entered in any court of proper jurisdiction.
Notwithstanding the foregoing, either party may seek and obtain temporary injunctive
relief from any court of competent jurisdiction against any improper disclosure of the
Confidential Information.

205

IN WITNESS OF THEIR AGREEMENT, the parties have set their hands to it

below effective the day and year first written above.
Disclosing Party

Receiving Party

By: __________________________

By: __________________________

206

SAMPLE LOGS

207

SAMPLE Exhibit List/Logs

208

Exhibit List CLIENT NAME

Our
#

Depo
#

Trial
#

When
Offered
Depo/Tr
ial/Hrg

Offered
By:

Received?
Yes or No

Description of Exhibit

209

Our
#

Depo
#

Trial
#

Offered

Received

Description of Exhibit

210

Additional Notes

211

Exhibit Log
Case Name:
Exhibit

Case ID:
Exhibit #

Source of
Exhibit

Offered at
(hrg/depo/trial)

Original Maintained
By

Objections

Rulings

Notes

212

SAMPLE Evidence Logs

213

Summary of Evidence
Case Name:
Evidence

Case ID:
Bates
Numbers

Date

Source

Relevance

Foundation

Objection

Supporting
Exhibits

Ruling

214

Exhibit/Witness Cross-Reference Chart

Case Name:
Date
Collected

Case ID:
Name of Individual
Who Collected Evidence

Exhibit Number

Description of Exhibit

Origination
(Trial/Depo/Discovery
)

Witness(es) Evidence
Relates To

Marked As
Exhibit?

215

Production Log
Case Name:
Document

Case ID:
Bates
Numbers

Date of Document

Author

Date Produced

Produced By

Privileges Asserted

Notes

216

Privilege Log
Case Name:
Start Bates
No.

Case ID:
End
Bates No.

Doc Date

Author

Recipient

CC

Document

Privilege Description

Privilege Summary

Location of Document

217

Photograph Log
Case Name:
Photograp
h No.

Case ID:
Description

Date
Photographed

Time
Photographe
d

Photographer

Where
Photographed

Location of Original
Photos/Negatives

Produced?

Offered as Exhibit?

Exhibit #

218

Prior and/or Unrelated Medical

Case Name: Jerome Phillips v. Christopher Allen
Date

Provider

Medical Treatment

Case ID: Doc. 1067 No. 493

Reason for Treatment

Impairment or
Permanency

Medical
Records?

Date Produced

Privilege
Assessed

Notes

Column4

219

Medications
Case Name:
Date

Case ID:
Provider

Medication

Reason for Prescription

Medical
Records?

Date
Produced

Privilege
Assessed

Notes

220

SAMPLE Timelines

221

Medical Timeline
Case Name:
Date

DOA:
Provider

Medical Treatment

Charges Incurred

Doc.
Prescriptions

Physician

Page
Notes

222

Blake Werts Birth Timeline

7:00 AM

11:00 AM

3:00 PM

7:00 PM

11:00 PM

Sep 16 1996

3:00 AM
Sep 17

Peggy Admitted to Hospital (7:05 AM)

Start Pitocin 10u/500 (7:40 AM)
Increase Pitocin 20u/500 (4:30 PM)
FHT Decelerations Noted in Nurse's Notes (7:15 PM)

Nurse's Notes indicate Pt calls out in pain (7:50 PM)

Nurse's Notes indicate uterus palpated (7:53 PM)
Deceleration; FHT's difficult to assess (7:54 PM)

Mom complains of abdominal pain; abdomen very firm; fetal heart rate dropped into 70's (7:55 PM)
Nurse's Notes indicate moved to left side; FHT's at 70BPM with questionable variability (7:58 PM)
Nurse's Notes indicate No FHT response (8:00 PM)
Nurse's Notes indicate moved to right side: scalp stim done with no response (8:02 PM)
Nurse's Notes indicate Dr. Taylor calls in and given report on deceleration; Ordered terbuline and C/S
prep (8:04 PM)
Nurse's notes indicate FHT's remain in 70's with no LTV; scapt unable to be applied. No response
(FHT's) despite interventions. C/S explained; permis obtained (8:05 PM)
Nurse's notes indicate FHT's asculated 80 BPM with no variability; proceeded with Cesarean birth. Dr.
Taylor here. (8:12 PM)
Delivered by Dr. Taylor (8:25 PM)

Taken to Neonatal ICU (8:34 PM)

Blake's First Gasp of Air Post-Delivery (8:40 PM)

Sep 16 1996
7:00 AM

Sep 17
11:00 AM

3:00 PM

7:00 PM

11:00 PM

3:00 AM

Created with Timeline Maker Professional. Printed on Jun 02 2008.

223

June 23, 2009

Mr. R. Allan Mebus
RAMCRASH CONSULTING
1026 Denbigh Drive
Iowa City, IA 52246
RE:

Kelly Gibbs v. Kelcey J. Brockmeyer, Lance Ostermiller

and State Farm, et al.

Dear Mr. Mebus:

It was a pleasure to speak with you in connection with pending and anticipated litigation
involving the above-entitled action. Our firm generally intends to seek your analysis and opinion
regarding liability issues as to the accident which is addressed in the enclosed documents.
Initially, we request that you review the enclosed information, as detailed below, and give
me a call to discuss the human factors, time distance factors, and any other factors you deem
necessary in determining liability percentage breakdown attributable to each party (Kelcey
Brockmeyer, Lance Ostermiller, and if applicable, Kelly Gibbs) in this accident. Kelly Gibbs is
our client and is insured by State Farm Insurance. Lance Ostermiller is also insured by State Farm
Insurance. Kelcey Brockmeyer is insured by IMT. The following documents are enclosed via
CD-Rom:
1.
2.
3.
4.
5.
6.
7.
8.

9.

Recorded statement of Lance Ostermiller to State Farm Insurance;

Recorded statement of Kelsey Brockmeyer to State Farm Insurance;
Recorded statement of Kelly Gibbs to State Farm Insurance;
Recorded Statement of Lance Ostermiller to IMT Insurance;
All photographs taken in this case;
Official Accident Report from Iowa Department of Transportation;
Iowa Police Report Codes;
Iowa State Patrol Investigation, inclusive of Witness Statements of:
a.
Lance Ostermiller;
b.
James Weis, Sr.;
c.
Elijah Wood;
d.
Brian Keith;
e.
Francis Nieman;
f.
Kelcey Jean Brockmeyer; and
g.
Lance Ostermiller.
Deposition transcript of Lance Ostermiller;

224

Mr. Allan Mebus

June 23, 2009
Page 2 of 2
10.
11.
12.
13.

Deposition transcript of Kelsey Brockmeyer;

Deposition transcript of Kelly Gibbs;
Plaintiffs discovery responses to date; and
Defendants discovery responses to date.

If you should need any further information prior to our next conference call, please let me
know. Once you have had the opportunity to review the enclosed documents and conduct your
investigation, please give me a call to discuss the case prior to authoring your report. My
paralegal, Christi Koch, is available to assist you with any additional information needed or to set
up a conference call should you wish to speak with me directly. Please let her know if we can
provide anything additional to you.
As you are aware, all work under this engagement, including any reports, data, notes, work
papers, correspondence or other documents you may generate or receive are to be considered
confidential work product. All such documents (any information they contain that is not publicly
available data) may be used only for purposes of this engagement and, of course, may not be
disclosed to anyone without our written consent. Please notify us promptly if you receive:
a)

Any request to reveal information related to the engagement or to examine, inspect

or copy any documents you generate or receipt; or

b)

Any actual or attempted service of a subpoena, summons or order purporting to

require the disclosure of any such information or documents.

Your fees as indicated in your Fee Schedule provided to our office are acceptable and we
acknowledge and accept that we will be billed monthly, as indicated in your Fee Schedule. A
retainer check in the amount of $1,000.00 is enclosed and will be credited against the final bill for
services rendered. It is understood and accepted that this retainer fee is not refundable and not
given as a condition or guarantee of a specific opinion in this matter.
We look forward to working with you on this case.
Sincerely,

Craig L. Kelley
clkkelley@inserra.com

CLK/ck
Enclosures
cc:

Kelly D. Gibbs
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RE: Experts

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