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 facebook discovery caseaccess 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.maryland discovery ruling

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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friend requesting attorneySocial 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.

maryland expert designations

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

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 appellate opinion witness statementsrecorded 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

Forbes, via Overlawyered, has an interesting article on Houston lawyer, Steve Susman’s efforts to cover lawyers on both sides of the aisle to try more jury trials… and make cases easier to try. How? Buy reaching stipulations on all the dumb things lawyers argue about.

Great idea that will never work in a vehicle accident or med mal case in Maryland. Why? Rule #1 of being an insurance defense lawyer for both in-house and outside counsel is don’t screw up by doing something outside of the box. For example, one suggestion Susman makes is to agree in advance not to depose each other’s experts. After a large verdict, every insurance company does a CSI forensics witch-hunt. “You did not depose the insurance defense lawyersplaintiffs’ experts. Why? Did you get permission for Jonathan P. Paperpusher for that decision?” Insurance companies are not promoting (in-house lawyers for car insurance companies) or doling out work to lawyers (outside counsel) who take outside-the-box risks that could backfire. Insurance companies give out a lot of love to singles hitters, but far less to home run hitters who occasionally strikeout. Continue reading

The Maryland Court of Appeals tackled a piece of one of the new vexing issues our courts face: dealing with social media. Most of the legal opinions circulating around involve discovery of social media such as Facebook and Twitter in civil cases. The court’s opinion in Griffin v. State deals with a different issue: determining the way to authenticate at trial electronically stored information printed from a social networking site. This is a Cecil County criminal case but the same logic would apply to a civil case so it is a case personal injury lawyers should read.

In this Cecil County case, the Defendant’s girlfriend apparently had a MySpace name of “Sistasouljah” who put an entry on her page that read: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”. Without social media opiniongoing into the details of the case, it suffices to say that this did not reflect well on the Defendant’s case.

For reasons that are unclear, the prosecutor did not authenticate this social media entry through the Defendant’s girlfriend, although she testified. Instead, they tried to use a police officer who, on the stand, put two and two together.

A divided Maryland Court of Appeals disagreed that the officer can authenticate a social media posting because the identity of who generated the profile is unknown. The court’s problem is that just because I put up a Facebook profile claiming I’m Charlie Sheen, it does not mean that I’m Charlie Sheen.

Judge Harrell appreciated the concern of the technical “heebie-jeebies” (yeah, he used that phrase and defined it by footnote) but believes that you can add two and two together under these facts because the heebie-jeebie concerns go to the weight to be given the evidence by the trier of fact. If the post was not the girlfriend’s post, the Defendant should argue that, in Judge Harrell’s opinion.

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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.” expert opinionDefendant’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

appellate court opinionBesides Kearney v. Berger, there was another interesting opinion that came down from Maryland’s appellate courts yesterday. The Maryland Court of Special Appeals ruled on an interesting discovery issue in a landlord-tenant case that has implications for Maryland personal injury lawyers.

The underlying case is a dispute between Checkers – I’m assuming it is the fast-food chain Checkers we are talking about – and its landlord. Checkers claimed it exercised an option to extend its lease. The case involved an estoppel certificate and a bunch of other things that I did not fully understand. Checkers sought documents from Gallagher Evelius & Jones (GEJ), a Baltimore law firm that represented the landlord. GEJ claimed a bunch of exceptions to the attorney-client privilege that were quite interesting. But the trial court never got to the merits of the argument because GEJ did not present its opposition to the motion to compel in the proper “set-up format.”
At first, I did a double-take when I saw the proper “set-up format.” There is a proper set-up format? But without knowing it, I think everyone here files their motions to compel in what the trial court saw as the proper setup format: setting up the controversy in the pleadings with the request, the response to the request, and the argument so the court is not required to flip back and forth between documents. I never thought it was a requirement and I’m still not sure that it is. But it seems like an excellent idea to avoid further annoying the trial court – usually rightfully so – that you have already annoyed with a discovery dispute.

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