RECORDS IN THE COURTROOM: WHY

SOUND RECORDS MANAGEMENT

PRACTICES MATTER

PRESENTED BY:

AARON ROLEN

Introduction

Aaron J. Rolen

The Bassett Firm – Dallas, Texas

Education

Southern Methodist University

Dakota Wesleyan University

Practice Areas:

Transportation Litigation

Personal Injury

Premises Liability

Products Liability

Insurance Defense

1. Records in Litigation – A Lawsuit Overview

2. Written Discovery

a. What is it?

b. Discovery Tools

c. Responding to Discovery

d. Privileged documents

3. Spoliation

a. What is it?

b. Examples

4. Tips and Takeaways

What We Will Cover

Records in Litigation – An Overview

The Typical Lawsuit

John Smith v. Jane Doe, Inc.

John files Petition & serves Jane

Doe, Inc.

Jane Doe’s lawyer (me) Answers.

The parties go through discovery

Mediation

Trial

Discovery – What is it?

Discovery is the process of attainting evidence

and information for use in court.

Layman’s terms: the discovery period is a

time when parties exchange information

and documents (records)

General Rule: In TX, a party may request and

obtain discovery about anything so long as its: (1)

relevant and (2) not privileged

Discovery - Relevance

What is relevant?

Evidence relevant if:

(a) it has any tendency to make a fact more or less probable

than it would be without the evidence; AND

(b) the fact is of consequence in determining the action.

This is an extremely low bar.

Includes evidence that may be inadmissible

at trial.

Discovery - Privileges

What is Privileged? Attorney-Client

Attorney Work Product

Physician-Patient

Spousal Privilege

Trade Secret

Mental Health

Communications with Clergy

(The list goes on….)

Bad news: In a lawsuit, most confidential information really isn’t confidential.

Discovery

SO, in TX, so long an information is (1) relevant and

(2) not privileged:

Party must disclose the information or

documents requested.

A party is required to produce documents

or tangible things within the party’s

possession, custody, or control. Lawyers fight over this, but we wont get into it.

Discovery – The Goal

Goals:

To make sure that all the parties have

access before trial to important

information

Allows for more settlements

Supposed to be cooperative and less

adversarial

There are rarely, if ever, “surprise

documents” at trial.

Discovery – Tools

Discovery – Tools

Written discovery tools

Requests for Disclosure

Requests for Production (third parties, too)

Interrogatories

Requests for Admission

Subpoenas

Preservation Letters

This is where YOU come in.

Request for Disclosure

Texas Rules of Civil Procedure 194

A discovery tool which permits a party to obtain

certain information from another party without having

to argue over whether the information is

discoverable or if must be produced.

Names of parties

PWKORF - Name, address, and telephone number

Legal theories

Economic damages

Testifying expert information

Request for Production

Texas Rules of Civil Procedure 196

A request for the production or inspection of,

sample, test, photographs, documents, or

tangible things within the scope of discovery

Request must specify as to what is going to be

produced or inspected

Subpoena

Subpoena must command person to (1) attend and

give testimony at a deposition, hearing, or trial or (2)

produce and permit inspection of documents or

tangible things within that person’s possession.

Limits:

Range of 150 miles

Who may issue:

Clerk of district, county, or justice court

Attorney from the State of Texas, as an officer of the

court.

Service

Response

Subpoena

If you receive a subpoena in the normal course of

business, you should contact you corporate

counsel immediately.

Protect important privileges

Trade secrets

Deposition upon Written Questions

Frequently used tool to obtain answers and

documents from non-parties

Again, contact your boss, an attorney, etc.

Preservation Letters

BIG Trap – Often forgotten about.

“This letter is a formal request that you retain

and preserve the following:”

Every document you’ve ever created, thought

about creating, or dreamed about creating.

Responding to Discovery

Produce the document/information OR

Assert a privilege

Texas Rule of Civil Procedure 193.3

Party asserting privilege in response to discovery

must state:

Responsive documents are being withheld

Which discovery request related to the withheld materials

The privilege(s) asserted

Discovery – Privilege Log

Once the requesting party receives a

privilege claim, it can request a privilege

log

Party claiming privilege must create and

produce a privilege log within 15 days of

receiving the request

Discovery – Privilege Log

Privilege log:

Description of the withheld documents sufficient for the

parties to assess whether the privilege truly is

applicable

Assert a specific privilege for each item/group of items

Court Hearing if disputed.

Your records organization is critical for me to

quickly assess what documents we have and

whether privileged. (Deadlines, deadlines,

deadlines).

Discovery – Important Exception

TRCP 193.3(c): Party may withhold privileged

communication to or from a lawyer or lawyer’s

representative or a privileged document from a lawyer or

lawyer‘s representative WITHOUT following privilege

log rules if:

(1) Created or made from the point at which a party

consults a lawyer with a view to obtaining

professional legal services from the lawyer in the

prosecution or defense of a specific claim in the

litigation which discovery is requested, and

(2) Concerning the litigation in which discovery is

requested.

Discovery – Important Exception

Takeaway: Consult a lawyer early.

Protect important documents and communications

and avoid expensive discovery fights.

A Summary - Role of Records Managers

An attorney will work closely with you

to respond to written discovery.

Deadlines (30 or 50)

Offense

Defense

Avoiding Spoliation

Spoliation

Spoliation

What is spoliation?

Spoliation is the “destruction or material alteration of

evidence or the failure to preserve property for

another’s use as evidence in pending or reasonably

foreseeable litigation.”

Spoliation

Spoliation is:

destruction or

material alteration

of evidence

or the failure to preserve property

for another’s use

as evidence

in pending or

reasonably foreseeable litigation.

Spoliation

Remember:

Preservation Letters

“Accidentally” Missing documents

Failing to abide by industry

standard/requirements

What do Texas Courts Say about Spoliation?

To warrant a spoliation sanction:

There was a duty to preserve evidence,

the spoliating party breached that duty, and

the destruction of evidence prejudiced the non-

spoliating party’s ability to present its case or defense.

Cire v. Cummings, Supreme Court of Texas,

134 S.W.3d 835 (2004).

Plaintiff/client filed legal malpractice fee forfeiture suit

against his former attorneys.

Defendants/attorneys moved to strike pleadings as

spoliation sanctions after Plaintiff/client refused to

disclose, and later destroyed, secret audiotapes of

conversations with attorneys.

The court administered “death penalty” sanctions by

striking Plaintiff’s pleadings.

Extreme Spolitation Example:

Ashton v. Knight Transportation

This case involved two collisions occurring

in relatively quick succession.

Collision #1: 15 year-old, drunk, ran stop

sign, hit Kelly and Don Ashton who were in a

Hummer.

Collision #2: Don Ashton was crawling away

from the Hummer when he was run over by

an 18 wheeler owned by the Defendant.

After the accident, the Knight driver

stopped a short distance away to

check his truck, then fled the scene,

and

He falsified his driver’s log, and

He drove from Kansas to California,

and

He had his tires replaced and truck

fixed in California, and

He notified Knight (but not the police).

Knight hired a lawyer, and

Knight hired an investigator

who removed “flesh” samples

from the vehicle, and

Knight failed to preserve on-

board email communications

from the driver.

All of those actions were taken BEFORE

the company/driver spoke to police.

The only way the Knight vehicle and driver

were linked to the accident was by a piece

of the truck that broke off at the scene.

Knight refused to cooperate with

investigators and did not disclose its

investigator’s report until almost 3 years

AFTER the accident.

The Court’s Proportionate Remedy?

The Death Penalty.

“The court finds that the

sanction most suited to

Defendant’s destruction of

evidence is to strike their

pleadings and defenses to

liability.”

Law and Application

That was an extreme example.

Courts are reluctant to administer death penalty

sanctions and will not do so “absent a party’s

flagrant bad faith or counsel’s callous disregard

for the responsibilities of discovery under the

rules.”

In malpractice case, the Plaintiff not only failed to

produce the audiotapes but destroyed the tapes after

being ordered three times to produce them.

Furthermore, the tapes were essentially the only

method Defendants had to disprove the Plaintiff’s

claim.

Spoliation

What is the best way to defend against spoliation?

As soon as an accident/event happens, T-H-I-N-K

about:

Anything the Plaintiff’s attorney could conceivably argue –

even without a straight face – is relevant.

And should have been retained.

Then, determine what you need to retain.

Verify that your instructions have been followed.

Beating the Spoliation Allegations

Attorneys have various arguments to beat spoliation

allegations, BUT those arguments are much

easier if you have done your job well. Duty to preserve – Prove that you did not know and could not

have reasonably anticipated current litigation.

Breach – Prove that any destroyed evidence was not relevant to

the current claim or that evidence could not have been preserved

absent extraordinary measures.

Prejudice – Prove that there is other evidence that adequately

proves or disproves the issue or fact at hand.

BUT these arguments are much easier if you

have done your job well.

Beating the Spoliation Allegations

The more severe the accident, the greater the duty

to preserve.

The more sophisticated the Defendant, the greater

the duty to preserve.

You better have a good explanation if stuff goes

missing.

“Smarten up” the Plaintiff’s attorney.

Know ALL of the other places they can get the

evidence they need.

Tips and Takeaways

Have records retention policies…

And FOLLOW THEM.

“Audit” your files

How long will it take you to locate

documents?

Don’t rely on Betty Sue

Think “what if I am deposed”

Questions?

Passion. Preparation. Persistence.

Aaron J. Rolen

(214) 219-9900

arolen@thebassettfirm.com

On Twitter: @TheBassettFirm

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