Discovery In Civil Litigation Discovery In Civil Litigation ––l dl dIts Role and ImportanceIts Role and Importance

Mazanec, Raskin & Ryder Co., LPAMazanec, Raskin & Ryder Co., LPATodd Raskin, Esq.Todd Raskin, Esq.

100 Franklin’s Row, 34305 Solon Road100 Franklin’s Row, 34305 Solon RoadCleveland, Ohio 44139Cleveland, Ohio 44139

(440) 248(440) 248--79067906(440) 248(440) 248 79067906traskin@mrrlaw.comtraskin@mrrlaw.com

Sponsored by Central Arkansas Risk Management Association Sponsored by Central Arkansas Risk Management Association 501 W. Markham Street, Suite B 501 W. Markham Street, Suite B

Little Rock, AR 72201Little Rock, AR 72201

What is discovery and how does What is discovery and how does yyit fit into a civil lawsuit?it fit into a civil lawsuit?

Discovery is the process used by parties to a Discovery is the process used by parties to a lawsuit to exchange information about the lawsuit to exchange information about the case and obtain evidence to support their case and obtain evidence to support their claims.claims.Di i ll b i f hDi i ll b i f hDiscovery typically begins after the Discovery typically begins after the complaint and answer are filed in a case.complaint and answer are filed in a case.I f ti l d d i di i thI f ti l d d i di i thInformation learned during discovery is then Information learned during discovery is then used to prepare the case for trial, evaluate used to prepare the case for trial, evaluate liability and determine potential settlementliability and determine potential settlementliability and determine potential settlement.liability and determine potential settlement.

Progression of a LawsuitProgression of a LawsuitProgression of a LawsuitProgression of a Lawsuit

Complaint is filed by the plaintiff and served onComplaint is filed by the plaintiff and served onComplaint is filed by the plaintiff and served on Complaint is filed by the plaintiff and served on the defendants.the defendants.The defendants file an answerThe defendants file an answerThe defendants file an answer.The defendants file an answer.Discovery occurs.Discovery occurs.A motion fo s mma j dgment can be filedA motion fo s mma j dgment can be filedA motion for summary judgment can be filed A motion for summary judgment can be filed with the court asking the court to dismiss the with the court asking the court to dismiss the plaintiff’s claims based on the evidenceplaintiff’s claims based on the evidenceplaintiff s claims based on the evidence plaintiff s claims based on the evidence produced in discovery.produced in discovery.Trial, if the motion for summary judgment isTrial, if the motion for summary judgment isTrial, if the motion for summary judgment is Trial, if the motion for summary judgment is denied.denied.

Limits on DiscoveryLimits on DiscoveryLimits on DiscoveryLimits on Discovery

Discovery is governed by the court.Discovery is governed by the court.The rules permit the parties to inquireThe rules permit the parties to inquireThe rules permit the parties to inquire The rules permit the parties to inquire into all noninto all non--privileged areas that are privileged areas that are relevant to the claim or defenserelevant to the claim or defenserelevant to the claim or defense.relevant to the claim or defense.Discovery cannot be used to harass, Discovery cannot be used to harass, intimidate or embarrass the otherintimidate or embarrass the otherintimidate or embarrass the other intimidate or embarrass the other party.party.

PrivilegePrivilegePrivilegePrivilege

Privileged matters are generally protected fromPrivileged matters are generally protected fromPrivileged matters are generally protected from Privileged matters are generally protected from discovery.discovery.

AttorneyAttorney ClientClient–– AttorneyAttorney--ClientClient–– SpousalSpousal

Docto o Ps chothe apistDocto o Ps chothe apist PatientPatient–– Doctor or PsychotherapistDoctor or Psychotherapist--PatientPatient–– PriestPriest--PenitentPenitent

Id tit f I fId tit f I f–– Identity of an InformerIdentity of an InformerThere are exceptions to these privileges. There are exceptions to these privileges. I f lI f l b f di l ib f di l iInform your counsel Inform your counsel before disclosingbefore disclosing any any information to determine if any privileges apply.information to determine if any privileges apply.

RelevanceRelevanceRelevanceRelevance

Broadly defined Broadly defined –– not very limitingnot very limiting–– AnythingAnything thatthat isis eithereither admissibleadmissible inin courtcourtAnythingAnything thatthat isis eithereither admissibleadmissible inin courtcourt

oror thatthat maymay leadlead toto thethe discoverydiscovery ofofadmissibleadmissible evidenceevidence..

ThereThere isis aa differencedifference betweenbetween whatwhatinformationinformation cancan bebe discovereddiscovered (broad)(broad)( )( )andand whatwhat informationinformation cancan actuallyactually bebeusedused atat trialtrial (more(more narrow)narrow)..(( ))

Types of DiscoveryTypes of DiscoveryTypes of DiscoveryTypes of Discovery

InterrogatoriesInterrogatoriesInterrogatoriesInterrogatories–– Written questions to be answered by the partyWritten questions to be answered by the party

Request for Production or InspectionRequest for Production or InspectionRequest for Production or InspectionRequest for Production or Inspection–– Request to inspect or copy documents or other Request to inspect or copy documents or other

physical evidencephysical evidencephysical evidencephysical evidence

Request for AdmissionRequest for Admission–– Request to admit specific facts or lawRequest to admit specific facts or lawq pq p

DepositionsDepositions–– Formal interview conducted under oathFormal interview conducted under oath

Medical ExaminationsMedical Examinations

Initial DisclosuresInitial DisclosuresInitial DisclosuresInitial Disclosures

Federal courts require certain information to beFederal courts require certain information to beFederal courts require certain information to be Federal courts require certain information to be exchanged prior to discovery.exchanged prior to discovery.–– Name and contact information of witnesses that youName and contact information of witnesses that you–– Name and contact information of witnesses that you Name and contact information of witnesses that you

may use to support your case;may use to support your case;–– Copy or description of all documents or other items Copy or description of all documents or other items

you may use as evidence;you may use as evidence;–– Calculation of damages, with supporting documentsCalculation of damages, with supporting documents

C i f i tC i f i t–– Copies of any insurance agreementsCopies of any insurance agreements

This information must be exchanged early so it This information must be exchanged early so it is important to provide it to your attorney asis important to provide it to your attorney asis important to provide it to your attorney as is important to provide it to your attorney as soon as possible.soon as possible.

InterrogatoriesInterrogatoriesInterrogatoriesInterrogatories

W itt ti dW itt ti d d thd th bbWritten questions answered Written questions answered under oathunder oath by by the individual to whom they are directed.the individual to whom they are directed.M b d l t t d iti t i l ifM b d l t t d iti t i l ifMay be used later at deposition or trial if May be used later at deposition or trial if answers are unclear or inconsistent.answers are unclear or inconsistent.A l l i l dA l l i l dAnswer completely, concisely and as Answer completely, concisely and as accurately as possible.accurately as possible.Can produce records in lieu of written Can produce records in lieu of written response.response.–– For example For example –– policies, incident reports, narrative policies, incident reports, narrative

statements, witness statements statements, witness statements

M tM t b d b th tb d b th tMustMust be answered by the person to be answered by the person to whom they are directed. whom they are directed.

f f ff h fff f ff h ff–– If to a specific officer, that officer must If to a specific officer, that officer must answer.answer.If t th Cit C t li d t tIf t th Cit C t li d t t–– If to the City, County or police department, If to the City, County or police department, can determine best individual or individuals can determine best individual or individuals to answerto answerto answer. to answer.

Can review records to assist in Can review records to assist in answeringansweringanswering.answering.Can ask questions of counsel when Can ask questions of counsel when

iianswering.answering.

Typical Areas of InquiryTypical Areas of InquiryTypical Areas of InquiryTypical Areas of Inquiry

Employment historyEmployment history Names of witnessesNames of witnessesEmployment historyEmployment historyDisciplinary historyDisciplinary historyA d fA d f

Names of witnessesNames of witnessesSpecific policies in Specific policies in forceforceAreas and frequency Areas and frequency

of trainingof trainingPast pe fo mancePast pe fo mance

forceforcePast lawsuits, citizen Past lawsuits, citizen complaints or internalcomplaints or internalPast performance Past performance

evaluation(s) and evaluation(s) and scoresscores

complaints or internal complaints or internal reviewsreviewsReasons for yourReasons for yourscoresscores

Statements made by Statements made by any partyany party

Reasons for your Reasons for your actions (use of force, actions (use of force, failure to seek medical failure to seek medical any partyany partycare)care)

Request for Production Request for Production qqand Inspectionand Inspection

A request to copy or inspect any A request to copy or inspect any document, electronically stored document, electronically stored , y, yinformation or a premises.information or a premises.

Includes writings, drawings, charts, Includes writings, drawings, charts, graphs photographs sound records orgraphs photographs sound records orgraphs, photographs, sound records or graphs, photographs, sound records or images.images.

Typical RequestsTypical RequestsTypical RequestsTypical Requests

l f ll f l llPersonnel filesPersonnel filesTraining filesTraining files

Police reports Police reports Dispatch records and Dispatch records and

didiPerformance reviews Performance reviews Disciplinary recordsDisciplinary records

recordings recordings Cruiser camera Cruiser camera recordingsrecordingsCitizen complaintsCitizen complaints

Policy and procedure Policy and procedure

recordings recordings Security camera Security camera recordings for therecordings for themanualsmanuals

Training manualsTraining manuals

recordings for the recordings for the police station or jailpolice station or jail

Requests (Requests (Con’tCon’t))Requests (Requests (Con tCon t))

d dd d llAudio recordings, Audio recordings, including telephone including telephone calls and tapedcalls and taped

Housing logs or Housing logs or security checks for security checks for detainees or inmatesdetainees or inmatescalls and taped calls and taped

interviewsinterviewsInvestigative reportsInvestigative reports

detainees or inmatesdetainees or inmatesMedical records Medical records and/or coronerand/or coronerInvestigative reports Investigative reports

–– both for the both for the incident and internal incident and internal

and/or coroner and/or coroner reports reports Toxicology reportsToxicology reports

investigations investigations following an incidentfollowing an incident

Toxicology reports Toxicology reports

The Importance of The Importance of ppDocumentationDocumentation

Documents exchanged during discovery Documents exchanged during discovery frequently become exhibits at trial or at frequently become exhibits at trial or at depositions.depositions.Documents are also useful at reminding Documents are also useful at reminding ggwitnesses of events that often witnesses of events that often happened several years before.happened several years before.pp ypp yReports and other documents should be Reports and other documents should be factually based and concise. Avoidfactually based and concise. Avoidfactually based and concise. Avoid factually based and concise. Avoid rhetoric or personal comments.rhetoric or personal comments.

ExampleExample Poor ReportPoor ReportExample Example –– Poor ReportPoor Report

VehicleVehicle waswas observedobserved swervingswerving inin thethe lanelane ofof traveltravel..VehicleVehicle stoppedstopped onon suspicionsuspicion ofof drivingdriving whilewhile intoxicatedintoxicated..OperatorOperator waswas questionedquestioned andand appearedappeared toto bebe underunder thetheOperatorOperator waswas questionedquestioned andand appearedappeared toto bebe underunder thetheinfluenceinfluence.. OperatorOperator waswas askedasked toto stepstep outout ofof thethe vehiclevehicleandand waswas identifiedidentified asas BobBob Smith,Smith, thethe towntown drunkdrunk.. HeHe waswasadvisedadvised hehe waswas underunder arrestarrest forfor drivingdriving whilewhile intoxicatedintoxicatedadvisedadvised hehe waswas underunder arrestarrest forfor drivingdriving whilewhile intoxicatedintoxicated..OperatorOperator waswas thenthen takentaken intointo custodycustody andand transportedtransported forforbookingbooking..

ExampleExample Better ReportBetter ReportExample Example –– Better ReportBetter ReportVehicleVehicle waswas observedobserved swervingswerving inin thethe lanelane ofof traveltravelVehicleVehicle waswas observedobserved swervingswerving inin thethe lanelane ofof traveltravel..VehicleVehicle stoppedstopped onon suspicionsuspicion ofof drivingdriving whilewhile intoxicatedintoxicated..OperatorOperator waswas questionedquestioned regardingregarding whatwhat hehe hadhad beenbeendoingdoing thatthat eveningevening andand waswas thenthen askedasked toto stepstep outout ofof thethevehiclevehicle.. OperatorOperator waswas identifiedidentified asas BobBob SmithSmith.. ThisThisofficerofficer detecteddetected thethe odorodor ofof alcoholalcohol.. OperatorOperator failedfailed totoofficerofficer detecteddetected thethe odorodor ofof alcoholalcohol.. OperatorOperator failedfailed totorespondrespond toto thethe questionsquestions asked,asked, hadhad difficultydifficulty focusingfocusing hishiseyeseyes andand hadhad difficultydifficulty maintainingmaintaining balancebalance duringduringquestioningquestioning BasedBased onon thesethese observationsobservations thisthis officerofficerquestioningquestioning.. BasedBased onon thesethese observations,observations, thisthis officerofficerconcludedconcluded thatthat thethe subjectsubject waswas likelylikely intoxicatedintoxicated.. HeHe waswasadvisedadvised hehe waswas underunder arrestarrest forfor drivingdriving whilewhile intoxicatedintoxicated..OperatorOperator waswas thenthen takentaken intointo custodycustody andand transportedtransported forforbookingbooking..

Document PreservationDocument PreservationDocument PreservationDocument Preservation

Steps should be taken to preserve documents orSteps should be taken to preserve documents orSteps should be taken to preserve documents or Steps should be taken to preserve documents or other evidence immediately after notification of other evidence immediately after notification of a lawsuit or as soon as you have reason toa lawsuit or as soon as you have reason toa lawsuit or as soon as you have reason to a lawsuit or as soon as you have reason to believe a suit will be filed.believe a suit will be filed.Events Which Typically Give Rise to LitigationEvents Which Typically Give Rise to LitigationEvents Which Typically Give Rise to LitigationEvents Which Typically Give Rise to Litigation–– Death or injury in custodyDeath or injury in custody–– Use of ForceUse of Force–– Suicide or Attempted SuicideSuicide or Attempted Suicide–– Need for Emergency Medical TreatmentNeed for Emergency Medical Treatment

What to Preserve?What to Preserve?What to Preserve?What to Preserve?Incident ReportsIncident Reports Internal reviews ofInternal reviews ofIncident ReportsIncident ReportsUse of Force ReportsUse of Force ReportsWitness StatementsWitness Statements

Internal reviews of Internal reviews of incidentincidentPast versions of policiesPast versions of policiesWitness StatementsWitness Statements

VideotapesVideotapesAudio recordingsAudio recordings

Past versions of policies Past versions of policies and proceduresand proceduresHousing logsHousing logsAudio recordingsAudio recordings

Medical Records or Medical Records or RequestsRequests

g gg gDocumentation of Documentation of security checkssecurity checksRequestsRequests

Shift SchedulesShift SchedulesEmailsEmails

Training recordsTraining recordsDisciplinary recordsDisciplinary records

Citizen ComplaintsCitizen Complaints Performance Performance EvaluationsEvaluations

How Long to Preserve?How Long to Preserve?How Long to Preserve?How Long to Preserve?

Documents should be preserved until Documents should be preserved until the time to file suit has passed.the time to file suit has passed.pp–– Assault and Battery Assault and Battery –– 1 year1 year–– False imprisonmentFalse imprisonment –– 1 year1 yearFalse imprisonment False imprisonment 1 year1 year–– Negligence Negligence –– 3 years3 years–– Emotional DistressEmotional Distress –– 3 years3 yearsEmotional Distress Emotional Distress 3 years3 years–– Constitutional Violations Constitutional Violations –– 3 years3 years

DepositionsDepositionsDepositionsDepositions

F l i t i d t d d th bF l i t i d t d d th bFormal interview conducted under oath by Formal interview conducted under oath by the attorney.the attorney.Th it th ti d th iTh it th ti d th iThe witness, the parties and their The witness, the parties and their attorneys will be present.attorneys will be present.Th j d d/ jTh j d d/ jThe judge and/or jury are not present.The judge and/or jury are not present.The testimony will be taken down by the The testimony will be taken down by the court reporter.court reporter.Since it is discovery, all questions must be Since it is discovery, all questions must be answered, except those which seek to answered, except those which seek to obtain privileged informationobtain privileged information..

Areas of InquiryAreas of InquiryAreas of InquiryAreas of Inquiry

G ll k t bt i th it ’G ll k t bt i th it ’Generally seek to obtain the witness’ Generally seek to obtain the witness’ knowledge of the events which resulted knowledge of the events which resulted i th l iti th l itin the lawsuitin the lawsuit–– Who was present, what was said, what the Who was present, what was said, what the

it did h t th it th dit did h t th it th dwitness did, what the witness saw others dowitness did, what the witness saw others do

Background information Background information –– education, education, k hi i ik hi i iwork history, trainingwork history, training

Identity of other witnesses or documentsIdentity of other witnesses or documents

Deposition TipsDeposition TipsDeposition TipsDeposition Tips

Make a good first impressionMake a good first impressionMake a good first impression.Make a good first impression.–– Present a professional, neat appearancePresent a professional, neat appearance

Do not be sarcasticDo not be sarcasticDo not be sarcastic.Do not be sarcastic.–– All the court will see is the written transcript. The All the court will see is the written transcript. The

court (and the other attorney) will be left to guess atcourt (and the other attorney) will be left to guess atcourt (and the other attorney) will be left to guess at court (and the other attorney) will be left to guess at your true meaning.your true meaning.

Speak clearly and concisely.Speak clearly and concisely.Do not guess or answer questions you do not Do not guess or answer questions you do not understand.understand.LISTEN to the question and THINK before LISTEN to the question and THINK before answering.answering.

Leave your anger, hostility or resentment at the Leave your anger, hostility or resentment at the y g , yy g , ydoor.door.–– Your personality at the deposition is all the attorney Your personality at the deposition is all the attorney

k f Y i d ffk f Y i d ffknows of you. Your attitude can affect your knows of you. Your attitude can affect your credibility. For example, don’t present the picture of credibility. For example, don’t present the picture of an angry, hostile officer when you’re being accused an angry, hostile officer when you’re being accused g y, y gg y, y gof excessive force.of excessive force.

Prepare like you would for a job interview. Prepare like you would for a job interview. –– Review your reports, statements, interrogatory Review your reports, statements, interrogatory

responses and familiarize yourself with the responses and familiarize yourself with the applicable policiesapplicable policiesapplicable policies.applicable policies.

Ask your counsel any questions about what will Ask your counsel any questions about what will happen at the deposition or what you shouldhappen at the deposition or what you shouldhappen at the deposition or what you should happen at the deposition or what you should review.review.

Requests for AdmissionRequests for AdmissionRequests for AdmissionRequests for Admission

A k th t t d it t i f tA k th t t d it t i f tAsk the party to admit certain facts are Ask the party to admit certain facts are true.true.–– Admit that Bob Smith was arrested by City Admit that Bob Smith was arrested by City

Police on June 3, 2010.Police on June 3, 2010.

k h d l lk h d l lAsk the party to admit certain legal Ask the party to admit certain legal statements are true.statements are true.–– Admit that Officer Jones acted under the Admit that Officer Jones acted under the

color of state law when he arrested Bob color of state law when he arrested Bob S ithS ithSmith.Smith.

Can narrow the issues for trial.Can narrow the issues for trial.

Answering Requests for Answering Requests for g qg qAdmissionAdmission

Requests for Admission are Requests for Admission are traditionally handled by your counsel.traditionally handled by your counsel.y y yy y yAs there is only a limited time to As there is only a limited time to respond to these it is imperative thatrespond to these it is imperative thatrespond to these, it is imperative that respond to these, it is imperative that you forward any requests for you forward any requests for admission that you receive to youradmission that you receive to youradmission that you receive to your admission that you receive to your counsel immediately.counsel immediately.

Medical ExaminationsMedical ExaminationsMedical ExaminationsMedical Examinations

Permitted when one party’s physical or Permitted when one party’s physical or mental condition is at issue.mental condition is at issue.Traditionally used to confirm the Traditionally used to confirm the plaintiff’s claimed physical or emotional plaintiff’s claimed physical or emotional p p yp p yinjuries.injuries.Can be used to require a defendant toCan be used to require a defendant toCan be used to require a defendant to Can be used to require a defendant to submit to an examination, but this submit to an examination, but this situation would be rare.situation would be rare.situation would be rare.situation would be rare.

Examination ProcedureExamination ProcedureExamination ProcedureExamination Procedure

If a physical or mental examination is permittedIf a physical or mental examination is permittedIf a physical or mental examination is permitted, If a physical or mental examination is permitted, the examination is conducted by a doctor the examination is conducted by a doctor chosen by the other partychosen by the other partychosen by the other party.chosen by the other party.–– The plaintiff sees the defendant’s doctor.The plaintiff sees the defendant’s doctor.

The doctor completes a written report after theThe doctor completes a written report after theThe doctor completes a written report after the The doctor completes a written report after the examination. examination. The party examined can request a copy of that The party examined can request a copy of that e pa ty e a ed ca equest a copy o t ate pa ty e a ed ca equest a copy o t atreport.report.–– The request entitles the other party to obtain similar The request entitles the other party to obtain similar

reports in the possession of the person examined.reports in the possession of the person examined.

Qualified ImmunityQualified ImmunityQualified ImmunityQualified Immunity

G t l ffi i l titl d tG t l ffi i l titl d tGovernmental officials are entitled to Governmental officials are entitled to qualified immunity for acts which do not qualified immunity for acts which do not i l t l l t bli h d i ht f hi hi l t l l t bli h d i ht f hi hviolate clearly established rights of which violate clearly established rights of which

a reasonable person would have known.a reasonable person would have known.Qualified immunity is immunity from suit.Qualified immunity is immunity from suit.It can protect governmental officials from It can protect governmental officials from p gp ghaving to go through the discovery having to go through the discovery process or limit discovery to issues process or limit discovery to issues p yp ysurrounding immunity.surrounding immunity.

Limited DiscoveryLimited DiscoveryLimited DiscoveryLimited Discovery

If the Court limits discovery to issues If the Court limits discovery to issues surrounding qualified immunity, the surrounding qualified immunity, the g q y,g q y,focus of discovery will be on what focus of discovery will be on what actions the officer took and the actions the officer took and the reasonableness of those actions.reasonableness of those actions.

Bifurcation of Claims Bifurcation of Claims against the Employeragainst the Employer

T d tit ti l l iT d tit ti l l iTo succeed on a constitutional claim To succeed on a constitutional claim against a governmental entity, the against a governmental entity, the l i tiff t h th tl i tiff t h th tplaintiff must show thatplaintiff must show that–– His or her constitutional rights were violated His or her constitutional rights were violated

ANDANDANDAND–– The violation was caused by a governmental The violation was caused by a governmental

policy custom or practicepolicy custom or practicepolicy, custom or practice.policy, custom or practice.

The issue of whether there was a The issue of whether there was a tit ti l i l ti i t b thtit ti l i l ti i t b thconstitutional violation is common to both constitutional violation is common to both

individual and governmental liability.individual and governmental liability.

The governmental entity is not liable if The governmental entity is not liable if there was no violation of constitutionalthere was no violation of constitutionalthere was no violation of constitutional there was no violation of constitutional rights.rights.Th b bif t d ( t d)Th b bif t d ( t d)The case can be bifurcated (separated) The case can be bifurcated (separated) so that only the issue of whether the so that only the issue of whether the l i tiff’ tit ti l i htl i tiff’ tit ti l i htplaintiff’s constitutional rights were plaintiff’s constitutional rights were

violated is determined first.violated is determined first.Only if it is determined that the Only if it is determined that the plaintiff’s rights were violated would the plaintiff’s rights were violated would the case proceed on the issue of whether case proceed on the issue of whether the violation was a result of a custom, the violation was a result of a custom, policy or practice.policy or practice.

Benefit to BifurcationBenefit to BifurcationBenefit to BifurcationBenefit to Bifurcation

More streamlined discovery focused solely onMore streamlined discovery focused solely onMore streamlined discovery focused solely on More streamlined discovery focused solely on the plaintiff’s individual case.the plaintiff’s individual case.More streamlined trial Less facts for the juryMore streamlined trial Less facts for the juryMore streamlined trial. Less facts for the jury More streamlined trial. Less facts for the jury to sift through.to sift through.Exclusion of other incidents from evidence TheExclusion of other incidents from evidence TheExclusion of other incidents from evidence. The Exclusion of other incidents from evidence. The issue of whether the plaintiff’s constitutional issue of whether the plaintiff’s constitutional rights were violated is determined based solely rights were violated is determined based solely g yg yon the plaintiff’s individual case. Issues of on the plaintiff’s individual case. Issues of whether there is a custom, policy or practice whether there is a custom, policy or practice can be determined by referring to other similar can be determined by referring to other similar incidents.incidents.

Arkansas Freedom of Arkansas Freedom of Information ActInformation Act

FOIA requests can be used by a potential FOIA requests can be used by a potential plaintiff to gather information before filing suit.plaintiff to gather information before filing suit.FOIA requests may also be used during FOIA requests may also be used during litigation to obtain information that may not be litigation to obtain information that may not be available during discovery For exampleavailable during discovery For exampleavailable during discovery. For example, available during discovery. For example, information that is not directly relevant to the information that is not directly relevant to the plaintiff’s case or that may be viewed as overlyplaintiff’s case or that may be viewed as overlyplaintiff s case or that may be viewed as overly plaintiff s case or that may be viewed as overly broad, such a request for use of force reports broad, such a request for use of force reports for the past 10 years.for the past 10 years.

FOIA Limits FOIA Limits –– Court Court OrdersOrders

FOIA also exempts from release FOIA also exempts from release information that is protected by Court information that is protected by Court Order. Order. –– If the court determines that information is If the court determines that information is

not available through formal discovery due not available through formal discovery due to privilege, relevance or other reasons, a to privilege, relevance or other reasons, a party may be able to obtain a court orderparty may be able to obtain a court orderparty may be able to obtain a court order party may be able to obtain a court order prohibiting the other party or his prohibiting the other party or his representative from making a FOIA requestrepresentative from making a FOIA requestrepresentative from making a FOIA request representative from making a FOIA request for that same information.for that same information.

Using FOIA To Limit Using FOIA To Limit ggDiscovery ResponsesDiscovery Responses

While FOIA may permit a party to obtainWhile FOIA may permit a party to obtainWhile FOIA may permit a party to obtain While FOIA may permit a party to obtain information not available through formal information not available through formal discovery it may also be used to limit whatdiscovery it may also be used to limit whatdiscovery, it may also be used to limit what discovery, it may also be used to limit what information can be obtained during discovery.information can be obtained during discovery.–– FOIA exempts certain information from release. An FOIA exempts certain information from release. An pp

argument can be made that this information is argument can be made that this information is protected and not available during formal discovery.protected and not available during formal discovery.In 1998 the Arkansas Supreme Court held thatIn 1998 the Arkansas Supreme Court held that–– In 1998, the Arkansas Supreme Court held that In 1998, the Arkansas Supreme Court held that police officers’ home addresses, which are exempt police officers’ home addresses, which are exempt from disclosure under FOIA, could not be obtained from disclosure under FOIA, could not be obtained during discovery in a 42 USC 1983 claim.during discovery in a 42 USC 1983 claim.

Some Items Exempted Some Items Exempted ppFrom ReleaseFrom Release

The Arkansas Attorney General has determinedThe Arkansas Attorney General has determinedThe Arkansas Attorney General has determined The Arkansas Attorney General has determined that the following information typically that the following information typically contained in personnel files are exempted fromcontained in personnel files are exempted fromcontained in personnel files are exempted from contained in personnel files are exempted from release and presumably also unavailable in release and presumably also unavailable in discovery:discovery:yy–– dates of birth; social security numbers; medical dates of birth; social security numbers; medical

information; driver's license numbers; insurance information; driver's license numbers; insurance coverage; tax information or withholding; payrollcoverage; tax information or withholding; payrollcoverage; tax information or withholding; payroll coverage; tax information or withholding; payroll deductions; banking information; unlisted telephone deductions; banking information; unlisted telephone numbers; personal enumbers; personal e--mail addresses; marital status mail addresses; marital status and information about dependentsand information about dependents

What Can Be Learned What Can Be Learned From FOIA RequestsFrom FOIA Requests

I di ti th t l it b fil dI di ti th t l it b fil dIndications that a lawsuit may be filedIndications that a lawsuit may be filed–– Receipt of numerous requests for Receipt of numerous requests for

i f ti di ti l i id ti f ti di ti l i id tinformation regarding a particular incidentinformation regarding a particular incident–– Receipt of requests from an attorneyReceipt of requests from an attorney

Potential problem areas that need Potential problem areas that need addressedaddressed–– FOIA requests may bring to light particular FOIA requests may bring to light particular

areas that may need additional training or areas that may need additional training or bl th t d dd d ithbl th t d dd d ithproblems that need addressed with problems that need addressed with

particular employeesparticular employees

Examples of Using FOIA Examples of Using FOIA Requests for OperationsRequests for OperationsRequests for Operations Requests for Operations

ReviewReviewA FOIA t i i d f ll i idA FOIA t i i d f ll i idA FOIA request is received for all suicide A FOIA request is received for all suicide observation checks performed on a observation checks performed on a d t i I di t th t itd t i I di t th t itdetainee. In responding to the request, it detainee. In responding to the request, it is discovered that some reports are is discovered that some reports are

i i f ti l hift th ti i f ti l hift th tmissing for particular shifts, other reports missing for particular shifts, other reports show checks not being regularly show checks not being regularly

f d Th t i di tf d Th t i di tperformed. These reports indicate a performed. These reports indicate a need for training in the performance and need for training in the performance and d t ti f i id h kd t ti f i id h kdocumentation of suicide checks.documentation of suicide checks.

Example 2Example 2Example 2Example 2

A FOIA request is received for all of theA FOIA request is received for all of theA FOIA request is received for all of the A FOIA request is received for all of the department’s use of force reports for 2009. In department’s use of force reports for 2009. In compiling the results it appears that the use ofcompiling the results it appears that the use ofcompiling the results, it appears that the use of compiling the results, it appears that the use of force by the officers has substantially force by the officers has substantially increased. This may indicate a need for more increased. This may indicate a need for more yytraining (or at least a refresher) on use of training (or at least a refresher) on use of force.force.The reports may also reveal a lot of instances The reports may also reveal a lot of instances where force was used by one particular officer. where force was used by one particular officer. Thi i di t th dThi i di t th d f lf l iiThis may indicate the need This may indicate the need for closer for closer review or review or monitoring of this individual.monitoring of this individual.

FOIA Requests And FOIA Requests And qqLitigationLitigation

Before Suit is FiledBefore Suit is Filed–– If FOIA requests indicate that a lawsuit If FOIA requests indicate that a lawsuit

may be filed, take immediate steps to may be filed, take immediate steps to make certain all important documents, make certain all important documents, video recordings and audio recordings arevideo recordings and audio recordings arevideo recordings and audio recordings are video recordings and audio recordings are preserved.preserved.

–– Maintain a copy of any documentsMaintain a copy of any documents–– Maintain a copy of any documents Maintain a copy of any documents provided in response to these requests provided in response to these requests and provide those documents to your and provide those documents to your a d p o de t ose docu e ts to youa d p o de t ose docu e ts to youcounsel after suit is filed.counsel after suit is filed.

FOIA RequestsFOIA RequestsFOIA Requests FOIA Requests

After Suit Is FiledAfter Suit Is Filed–– Notify your counsel immediately if you Notify your counsel immediately if you

receive a FOIA request from the other party receive a FOIA request from the other party or from anyone seeking information about or from anyone seeking information about the subject of the lawsuitthe subject of the lawsuitthe subject of the lawsuitthe subject of the lawsuit

–– Inform your counsel of what documents are Inform your counsel of what documents are being provided in response to the requestbeing provided in response to the requestbeing provided in response to the request being provided in response to the request and provide copies of all documents that are and provide copies of all documents that are not already in your counsel’s possessionnot already in your counsel’s possessionot a eady you cou se s possess oot a eady you cou se s possess o

Q ti ?Q ti ?Questions?Questions?

Thank you for your attention!Thank you for your attention!