Deck 9: Document Production and Control, Medical Exams, Admissions, and Compelling Discovery

Question 1

What is the procedure for replying to a request for production and inspection? What rules apply?

Answer 1

Before drafting the response, review each item of the request once more. For each item of the request, outline:
• What documents or information responsive to that item, if any, were located in the search of information
• Any objection and the reasons for the objection (failure to object may waive the objection)
• In what form or forms the opponent wants the information produced and in what form or forms it is best for your client to produce the item
• What differences or concerns need to be worked out with the other party prior to seeking a protective order
• What process is best for the client and the opponent for delivering the information or conducting any inspection, copying, testing, or sampling of the information

Question 2

What is the Freedom of Information Act? Why is it potentially useful to you as a litigation paralegal?

Answer 2

In 1976, the Freedom of Information Act, 5 U.S.C. § 552 (FOIA) was passed to provide the general public access to the records of many government agencies. The public policy underlying the law is that a more informed public will enhance the accountability and performance of government agencies and officials. Such openness is deemed desirable and consistent with our democratic form of government. Several states have passed similar laws. The FOIA might be helpful in a suit against a particular government agency or in a suit against a private party.

Question 3

What steps should be followed and indexes kept at the examination stage? What steps are important when returning documents that have been produced to the original custodian?

Answer 3

Index the documents. The number of indexes maintained will depend on what the supervising attorney has requested. A master index should record the number of the document, subject matter of the document and its nature (memo, letter, tax return, phone log, etc.), the new file number, the date of the document, the author of the document, the recipient of the document, whether the document is privileged or otherwise undiscoverable, the set and item of the production request that it responds to, and eventually whether the document was produced to the adversary. If other files, such as personnel files, are requested, information such as names of persons mentioned or receiving copies or drafts of the document might be included. At the close of the case, usually after all appeals have been exhausted, the original paper documents may be returned to their original locations. The return of each document or identifiable group of documents should be logged and receipted. Any of the client's original documents filed with the court or in the possession of the other parties should be retrieved and returned. All copies should then be shredded or burned. All of the indexes, return letters, and receipts should be kept in the case file.

Question 4

What is the definition, purpose, and scope of Rule 36 requests for admissions? What are the steps in the procedure for requesting admissions and responding to them?

Question 5

In separate subsections of your systems folder for production of documents and things and entry upon land for inspection and other things; request for physical and mental examination; request for admissions; and objections, compelling discovery, and sanctions:
Outline on definition, purpose, scope, applicable rules, and procedures; text page references, a copy or your own draft of pertinent checklists, techniques, and tips; copies of relevant sample forms for each device.

Question 6

Note parallel state rules and time limits for each of the above discovery devices in the Pleadings, Motions, and Time Limits Chart (Exhibit 6.23) and in each respective subsection of your systems folder.

Question 7

In what form should e-stored information be produced? What are the concerns regarding the format of such material? How do you determine what documents and things should be requested for a production of documents and things?

Question 8

What must be demonstrated to be granted a FOIA request, and what procedure must be followed to have such a request approved?

Question 9

What security techniques should be taken to protect computerized data?

Question 10

What sanctions can be imposed on a party by the court for failure to cooperate and adequately comply with a disclosure or discovery request, or for failure to comply with a court order compelling discovery? What is the procedure for compelling discovery and the role of the paralegal?

Question 11

What are the procedures and tasks you perform in working with requests for compulsory medical examination?

Question 12

To better understand and retain an overall picture of the document production process, draft a chronological list of the procedural steps in the federal production process. (See the Procedure subsection at the beginning of the chapter.)

Question 13

Draft a procedural checklist for making a request pursuant to the Freedom of Information Act, both federal and state, and place it in your systems folder. Include a copy of or page reference to the sample FOIA request in the chapter. (Note: Your state may have a specific statute for requesting public documents. It should be consulted in responding to this assignment.)

Question 14

How do you organize a small case file, and what kinds of documents go in each subsection? How do you organize a large case file?

Question 15

What is the definition, purpose, and scope of the request for production of documents and things?

Question 16

In a subsection in your systems folder on organizing files, insert text page references to or your drafted checklists for organizing small and large case files, copies of the master and subfile indexes, any alternative methods for organizing case files, and your organized case file to date for the Forrester case.

Question 17

What is the purpose of a Rule 35 mental or physical exam? What nonparties may be reached through this rule, and what showing is needed for such a request to be granted?

Question 18

What are the procedural steps and time requirements involved in the production of documents?

Question 19

What are some of the initial steps in preparing a production of documents and things and who can be helpful in assisting in this preparation?

Question 20

What steps need to be followed in pulling document files, both electronic and paper? Describe the objectives and each step in screening the pulled files or documents, both electronic and paper.

Question 21

Why is it important to have the attorney review the tabbed documents before copying?

Question 22

What are the procedures and tasks you perform in working with requests for compulsory medical examination?

Question 23

When you hire a vendor to copy documents for production, what does the vendor need to know?

Question 24

Draft the Request for Physical and Mental Examination from Mercury Parcel Service, Inc. to Mrs.
Forrester. Be sure you comply with your state rules.

Question 25

If your client is producing documents in a foreign language, what is your related responsibility to the receiving party?

Question 26

What techniques should be employed in reviewing and interpreting discovery documents?

Question 27

What are your objectives in reviewing and interpreting discovery documents?

Question 28

What should you look for when analyzing documents produced by the opponent?

Question 29

What should be done with poor or extra photocopies of documents for production?

Question 30

What are three steps to prevent spoliation of evidence and its sanctions?

Question 31

Draft a response to Ms. Forrester's request for production of documents and things found in this chapter.

Question 32

What resources are recommended for reviewing medical reports?

Question 33

In Case V from Chapter 1, assume that Carlos Montez has refused Ms. Rakowski's request to produce reports of previous incidents of harassment. He has objected on the grounds that this is irrelevant. Briefly stating that this may lead to relevant evidence, draft a motion to compel the answer.

Question 34

Assume that you are a paralegal for Mercury Parcel and have received the following requests for admissions from Forrester's attorney:
a. Defendant Hart was an employee of Mercury Parcel Service, Inc. on Tuesday, February 23,
_.
b. Plaintiff Forrester's conduct did not negligently contribute to the accident on February 26,
_.
c. No follow-up maintenance was performed on vehicle 23 regarding locking wheels between the time of the filing of the complaint and the accident on February 26, as confirmed by the unchecked follow-up item on form ICC-2015, No. 37.
d. Defendant Hart's supervisor, John Roosevelt, was advised to tell Defendant Hart not to fill out a company accident report after the accident.
Reflect on each item and draft what you think would be the proper response to each item. Your
responses should vary. Use the format that follows: REQUEST NO. 1: Defendant Hart . . .
RESPONSE: (Admit, Deny, Other)

Question 35

What cross files are normally kept in preparing for document production?

Question 36

What is often the most expensive stage of e-discovery? Why?

Question 37

What are the most expensive types of e-information to produce? The least expensive? Who pays for the production?

Question 38

Know the requirements and techniques for drafting a Request for Production, Inspection, and
Copying of Documents and its response.

Question 39

List important techniques for assisting at the production, examination, or inspection.

Question 40

What is the decimal document numbering system, and how does it work? What are its advantages?

Question 41

Using the facts from Case II, the Ameche case, prepare the Request for Production of Documents and Things and Requests for Admissions from the Ameches to the Congdens, the owners of the Maple Meadows Campground.

Question 42

Continue using the facts from Case II, the Ameche case, to prepare Requests for Admissions from the Congdens, the owners of the Maple Meadows Campground, to the Ameches.

Question 43

Place a copy of or a page reference to the Initial Steps Checklist for Preparing for Production of
Documents and Things in your systems folder.

Question 44

What advantages does the standardized decimal document numbering system provide over other systems?

Question 45

What are the purposes, objectives, and concerns for the production of documents?

Question 46

You work for the law firm representing Teeny Tiny Manufacturing (Case IV). Your attorney wants to see Briar Patch's documents indicating the number of pieces received and, particularly, the number of unsatisfactory pieces. Further, it is necessary to inspect a generous sampling of the unsatisfactory pieces to see if they were justifiably rejected. Draft the needed request for production.

Question 47

Describe in detail your role regarding requests for admissions.

Question 48

Briefly explain the importance to a business client of a document retention policy.

Question 49

Collect the documents you have gathered so far in the Forrester case and organize a small case file.

Question 50

Assume that you have been assigned to a very complex litigation case involving a series of construction contracts for a downtown mall, office, and residential center. You have never worked in this highly technical field. Explain in general terms how you would prepare a Mini-Guide to Construction Records to assist you in interpreting such records over the next three years of litigation.

Question 51

What is the role of the paralegal at a Rule 35 medical exam?

Question 52

What is the danger of requesting a copy of the report of the requested medical exam? What rule applies?

Question 53

You are asked to draft a request for the production of documents under Rule 34(a) of the Federal Rules of Civil Procedure. The request is to get pertinent documents from Mercury Parcel Service concerning safety and vehicle maintenance. You have no idea what forms are common to this industry. How might you determine what to ask for?

Question 54

Note the differences in a FOIA request and your state's equivalent state statute for a public document request. Place the information in your systems folder.

Question 55

Determine from your state statutes what documents are considered privileged when requesting public documents from a governmental entity. Also, determine what governmental entities are included in the definition of "public entity" requiring the disclosure of public documents.

Question 56

What remedies are available for overreaching discovery requests? What are the applicable federal rule and state equivalent? Note these in your systems folder.

Question 57

Under Rule 37, when can a party seek the aid of the court to compel disclosure and discovery?

Question 58

Search sites, such as HYPERLINK "http://www.paralegals.org/" http://www.paralegals.org, or HYPERLINK "http://www.nala.org/" http://www.nala.org or your state and local bar association Web sites, for articles on discovery techniques or document management and case management (litigation) software. Briefly summarize the main points of two articles.

Question 59

What materials are excepted from the FOIA?

Question 60

For organizational purposes, how should documents be produced in the reply [34(b)(i)]? What limitations and protections apply to the form in which e-information must be produced?

Question 61

Federal Rule 37 covers requests for medical examinations.

Question 62

An adverse jury instruction can result from

A) a breach of the duty of confidentiality.
B) the waiver of privileged information.
C) a breach of the duty to preserve evidence.
D) all of the above.

Question 63

The purpose of document production is to

A) skillfully confuse the opponent with a mass of paper.
B) provide the parties with an opportunity to review pertinent documents.
C) prevent the opponent's access to documents.
D) provide the parties with unrestricted access to the opponent's documents.

Question 64

Screening "pulled" documents involves

A) paper documents only.
B) highlighting unresponsive items.
C) redacting relevant information.
D) numbering and coding.

Question 65

The preservation letter and the litigation hold aim to prevent

A) spoliation.
B) document retention.
C) overreaching production requests.
D) abuse of the request for physical examination.

Question 66

When copying documents for production, you should

A) staple the copies if the originals were stapled.
B) copy only the pertinent pages of large documents.
C) keep any poor copies for use as scratch paper.
D) take the copies for the case file and return the originals to the custodian.

Question 67

Failure to organize documents can mean the loss of the case.

Question 68

A medical exam may be ordered only if

A) the alleged condition is in controversy.
B) the party is a child.
C) all HIPAA requirements are met.
D) the party's privacy will not be violated.

Question 69

A request for a medical examination does not require the party to undergo the exam.

Question 70

The original source log is especially helpful when files are pulled for production.

Question 71

If a party fails to cooperate in discovery, sanctions on that party could include default or dismissal of the action.

Question 72

When organizing and working with complex case files, one component is almost indispensable for organization and retrieval. What is this component?

Question 73

Help in locating specific documents for production can come from

A) the client.
B) the client's technology manager.
C) company division heads.
D) all of the above.

Question 74

When you screen files and documents for production, you should

A) identify items responsive to the request.
B) identify privileged documents.
C) number and classify documents.
D) all of the above.

Question 75

The party requesting the production of documents and things usually pays for procedures that facilitate that party's own analysis of the documents.

Question 76

Paralegals should not accompany clients to medical exams.

Question 77

The initial volume of data captured for production of e-stored information can be substantially reduced by

A) imaging all paper documents.
B) obtaining mirror data images of the opponent's computers.
C) including all replicant data.
D) using sophisticated data-filtering programs.

Question 78

A great advantage of "imaging" documents is quick retrieval.

Question 79

Estimating costs and meeting with the client's key personnel are important

A) procedures while screening pulled documents.
B) initial steps for requesting admissions.
C) initial steps for document production preparation.
D) procedures dictated by the federal rules on production of documents.

Question 80

Produced documents belonging to the same category should be stapled together.