The Discovery Update – September 2008


The Discovery Update – September 2008

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September 2008

From the President

Our electronic The Discovery Update has been published now for over a year, and, thanks to your positive feedback, we are even more determined to make it a very useful source of information for you.

We want to provide you only with the information that you find valuable, and your input will make sure we are serving you best.

Please email us and let us know what areas of discovery you would like to read about, or send us your articles that we can share with our readers.

We want to provide you with more than superior court reporting services – we continue to strive to be an invaluable resource for your practice as well.

Best regards,
Sheila Atkinson-Baker

Producing Spreadsheets in Discovery-2008

By Conrad J. Jacoby

In 2004 – at least a decade ago by e-discovery standards—I wrote an article about the difficulty of producing electronic spreadsheets in litigation discovery. At that time, I concluded, “Until new technologies are developed that can easily present read-only, easily verified versions of native format files, production of spreadsheets will remain an imperfect process.” Producing Microsoft® Excel Spreadsheets in Discovery, LawSolutions (Winter 2004).

It’s now 2008. Many legal teams, perhaps even a majority of them, now use online repositories to host discovery document reviews instead of law firm-hosted tools (and infrastructure) that cannot economically scale to adequately support terabytes upon terabytes of potentially relevant electronically stored information (“ESI”). Next-generation search tools, whether online or installed at a law firm, permit the rapid and cost-effective identification of duplicate and “near-duplicate” documents and can cluster documents based on user-identified degrees of similarity. And, most importantly, amendments to the Federal Rules of Civil Procedure that took effect in December 2006 now require litigants to discuss production formats for electronic documents, with an explicit goal of reducing the squabbling that has characterized most productions of digital information.

But electronic spreadsheets? They’re still a problem. In spite of great financial investment to produce these documents in a way that satisfies competing litigation needs of authenticity and full native functionality, litigants continue to disagree on a production format for these documents. And judges still spend entirely too much time resolving discovery disputes over these particular types of documents. Why hasn’t anything changed?

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15 Key Deposition Techniques in a Medical Malpractice Case

By Gerry Oginski
Law Office of Gerald Oginski, NY

Preparation is the entire key to a doctor’s deposition and you must spend countless hours reviewing the entire file, reviewing all the medical records, notes and entries in the chart. You also must know and review your theory of liability, causation and damages before you begin to review the file. You must keep track of anything in the chart that will help you in your quest to prove each element of liability, causation and damages.

1. Most lawyers ask the same questions at the beginning of every deposition:

a. State your name and address
b. State your qualifications, pedigree, schooling, etc.

This is fine, but very boring and very expected by defense counsel and the doctor. Mix it up a bit. I advocate never starting a doctor’s deposition this way. Why not go right to the heart of the case with the very first question?

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E-Discovery Update: Producing Spreadsheets in Discovery-2008

15 Key Deposition Techniques in a Medical Malpractice Case

Videotaping Your Opponent’s Deposition

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Videotaping Your Opponent’s Deposition
Create a Consolidated Deposition Exhibit 
A golfer stands at the tee, looks off towards the green and swings his driver. He hooks the ball over a hill onto the next fairway.”Fore!” shouts the golfer as his ball drifts out of sight.Cursing his luck, the golfer heads over the hill to find his ball.When he reaches the top of the hill, he looks down to see his ball next to an injured man lying on the ground. The golfer runs over to attend to the injured man.Slowly, the injured man regains consciousness and rubs the bump on his head.

“I’m so sorry, sir,” says the golfer. “I hooked my ball and it must have hit you in the head.”

The injured man sits up and winces in pain.

“I’ll sue you, pal!” announces the injured man. “This is going to cost you $500,000 at least!”

“Well,” says the golfer, “I shouted, ‘Fore!'”

The man thinks for a moment and says, “I’ll take it!”