Articles Posted in Discovery

Facebook discovery is all the rage amongst defense lawyers in personal injury cases.  The reason is twofold.  First, it gets defense lawyers access to information that might lead to admissible evidence that could diminish a plaintiff’s claim. Rarely will it relate to liability but there is an actual possibility that out-of-context (or in context) it would lead a jury to believe their pain is less than stated.

The second reason, and I think an equally driving force, is that defense lawyers have a new tool to harass the plaintiff(s).  Why? Because there is at least a subpopulation of defense lawyers who want to punish plaintiffs and their lawyers for bringing any personal injury claim.  This is the type of discovery that can be done with no real effort.  All you have to do is ask.  That is the real beauty of this discovery from the defense lawyer’s perspective. You just cut and paste from the guy down the hall or something you find online (I’m helping them here) and then just shout “reasonably calculated to lead to admissible evidence” if the plaintiff’s attorney objects.

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The Maryland Court of Special Appeals recently decided Johnson v. Franklin, a lead paint case with an unique discovery issue.

The Underlying Case

I’m glad you kept reading, you law scholar you!  Anyway, these are the facts. A lead paint case is filed in Baltimore City Circuit Court pertaining to a property where the Plaintiff used to live. The property had long since been rehabbed and sold.  Therefore, Plaintiff could not just walk in the door to do the lead-paint testing that he claimed he needed for his lawsuit. As a result, Plaintiff sends a letter to the current owner, asking if he can stop by for some “non-invasive environmental testing” of the property. The owner does not respond, which prompts the plaintiff to file a complaint to perpetuate the evidence. Specifically, he seeks an “equitable bill of discovery,” which would grant him a right of access to the property. The current owner does not respond to the motion but appears at a hearing pro se.  The court denies the motion because the current owner’s privacy interests outweigh the Plaintiff’s need to conduct testing.

This makes little sense to me.  How burdensome is it to have your property tested?  I can’t figure out why the property owner would fight it either. Plaintiff agrees and appeals to the Maryland Court of Special Appeals, alleging that the trial court abused its discretion by denying the complaint/request/petition.

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Social media is great. It’s an excellent way to maintain contact with old friends. It’s an excellent place to get news before any TV station gets it.  You can even follow Miller & Zois on Facebook.  We are pretty cute, right?

But it is a scary new world.  How many times have you heard about someone gets fired or disciplined because of an ill-advised post or comment? How many politicians have resigned because they thought it was a good idea to send a “private” message to an intern? How many people have been arrested from a tip found on social media?

Facebook and other forms of social media can also spell trouble for lawyers, too.  In New Jersey, two attorneys were recently sanctioned for sending a Facebook friend request to another party.

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One of the benefits for plaintiffs’ attorneys is that we are far better able to dictate the pace of the litigation. Some squander this opportunity by failing to fully load the gun before firing it. When we serve the defendant with the Complaint, we will, on our first round of discovery, name our experts from the beginning.

Name Your Experts From the Beginning

Our lawyers have always served a full course of discovery with our Complaint. What we have been doing for the last 15 years is filing our expert designations along with our Complaint. It is one more hoop a lawyer has to jump through when filing a Complaint, but it takes away another deadline you will need to meet down the road. I just did a quick Lexis search, typing in different searches to pull up missed expert deadline cases. In just a few minutes, I found hundreds of cases.

Drafting Interrogatories

In Maryland, each party is allowed 30 interrogatories under Maryland Rule 421 without leave of the court. I was looking at a case today that was referred to us by a lawyer who had already filed suit in the case. Our lawyers are normally hesitant to take a case that is already in litigation but the referring lawyer has referred a lot of work to us over the years so we agreed to step in and take over the case. It is a complex case involving serious injuries but the defendant’s attorney has posed serious questions as to causation of the Plaintiff’s injuries (previously nonsymptomatic patient with a herniated disk with an MRI that shows degeneration in the discs). I would love to ask additional interrogatories but the referring attorney, who is a great lawyer, filed 30 interrogatories with the Plaintiff’s Complaint.

The lawyer was probably under the mistaken impression that you cannot file multiple sets of interrogatories. This was the rule until 1994 when Maryland Rule 2-421 was amended to allow parties to serve multiple sets of interrogatories. Of course, the total number of interrogatories still may not exceed thirty.  But there is no reason not to break them up into over one set and given this rule, we typically serve a first set of initial interrogatories and file ”clean-up” interrogatories after putting together the initial facts. When using multiple sets of interrogatories, another tactic our we often use is alternative interrogatories, drafted considering the defendant’s attorneys’ answers to requests for admission.

Instead of discussing various torts that could be committed against Raul Ibañez, a man I will now irrationally detest for the rest of my adult life, let’s talk today about witness statements and whether they are discoverable. There was an interesting opinion in a California wrongful death case this summer, that I’ve been meaning to blog about for a while now, about whether recorded statements are discoverable.

This case – Coito v. California – comes to us on facts are beyond tragic. A 13-year-old boy drowned in the Tuolumne River in Modesto, California. His mother filed a wrongful death lawsuit against several defendants, including the State of California.

There were six witnesses, all boys with the young boy who died. There was lots of talk in the air that all were committing crimes. Obviously, the defendants found this of interest. Defendants could get recorded statements from some of the kids. When the kids were deposed, the defendants used the recorded statement to hold one of the kid’s feet to the fire on their prior statements.

But, being defendants, they did not want to turn over the recorded statements to the plaintiff, citing the work product privilege. Motions ensued. The trial court denied the plaintiff’s motion to get the statements but ordered defendants to produce the recording used at the deposition. Continue reading

Last week, the Maryland Court of Special Appeals decided Logan v. LSP Marketing, a lead paint case in Baltimore City.

Facts of Logan v. LSP Marketing

This case involves a lead paint poisoning lawsuit filed by Jamal Logan against 22 defendants, including LSP Marketing Corporation and Basilio Lachica. LSP filed a motion for sanctions seeking dismissal of the case or exclusion of all but one of Logan’s experts from testifying at trial. The court granted the motion for sanctions by excluding all but one of Logan’s experts, but denied the request for dismissal. Logan filed a motion to revise the court’s order, which was denied without a hearing. The case proceeded to trial, but Logan was unable to establish a prima facie case under the parameters of the court’s order. Logan requested a postponement of trial, which was denied, and one of the defendants moved for summary judgment. The court granted summary judgment as to all claims asserted against all defendants by Jamal Logan, and this appeal followed.

You Have to Answer Discovery

Here, Plaintiff did not answer discovery. Defense lawyers, who I believe were the Leder Law Group in D.C., filed a motion to compel. In what is regrettably a common practice in Maryland, the motion to compel got Plaintiff to answer the discovery and their response was “hey, this is moot, we answered now.” Defendant’s counsel, to their credit, wrote a reply saying the answers were insufficient in part because Plaintiff wrote garden-variety broad designations of experts. The motion was granted, but a more detailed expert designation never came.

So before trial, Defendant sought to strike the experts. Baltimore City Judge Kaye A. Allison struck Plaintiff’s experts from testifying at trial. When the case went to trial, Judge John P. Miller denied the motion to reconsider Judge Allison’s motion. Which left the Plaintiff with no case and Judge Miller granted the Defendant’s motion for summary judgment. Continue reading