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Fwd: How to Create a Discovery Plan [Cal Litigator]

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  • Roger Morales, CNSA
    ... From: Barbara Haubrich Date: Wed, Apr 20, 2011 at 6:52 PM Subject: How to Create a Discovery Plan [Cal Litigator] To:
    Message 1 of 1 , Apr 21, 2011

      ---------- Forwarded message ----------
      From: Barbara Haubrich <thecalifornialitigator@...>
      Date: Wed, Apr 20, 2011 at 6:52 PM
      Subject: How to Create a Discovery Plan [Cal Litigator]
      To: rmparalegal@...

      How to Create a Discovery Plan

      By Barbara Haubrich, ACP/CAS


      Attorneys devote an enormous amount of time on the discovery phase of litigation. The California Civil Discovery Act encompasses California Code of Civil Procedure §§ 2016.010 - 2036.050. California Code of Civil Procedure § 2019.010 outlines the methods of discovery as oral and written depositions; interrogatories; inspections of documents, things, and places; physical and mental examinations; requests for admissions; and exchange of expert trial witnesses. In addition, California Code of Civil Procedure § 2020.010 provides that discovery may be obtained from a person who is not a party to the action through the use of a deposition subpoena to compel oral or written deposition; or a deposition for the production of business records and things.


      A litigation discovery plan provides the scope of discovery and timeline for implementation of the discovery in order to support the legal theories and remedies for a particular party. I have participated in planning two types of discovery plans. The first type of plan is for the exclusive use by an attorney and paralegal. The second type of plan is for all parties’ counsel to develop jointly, and agree to follow throughout the discovery process. Either way, a discovery plan is an essential element to effectively implement the best use of the discovery methods. A well organized discovery plan is helpful for the attorney and paralegal to:

      1. Organize the case facts, and determine the liability and damage issues that need to be supported or defended in the matter.
      2. Stay focused on the identified issues.
      3. Identify what written discovery will need to be served.
      4. Identify the witnesses and parties that will need to be deposed, and in what order.
      5. Identify what discovery methods to utilize to accomplish the discovery goals in the most cost effective manner.

      Ultimately, a discovery plan must be fine tuned and approved for implementation by the supervising attorney, but a paralegal participates in the preparation and execution of a discovery plan. The best time for a plaintiff’s attorney to prepare a discovery plan is prior to litigation so that the plan is ready to be implemented once litigation has commenced. The best time for a defense attorney to prepare a discovery plan is prior to the filing of the Answer to Complaint so that the discovery plan can be implemented at the time the Answer is filed.


      How to Prepare a Discovery Plan


      There is no right or wrong way to prepare a discovery plan. It depends on the case facts, the complexity of the legal and damage issues, and cost to complete the discovery. For purposes of this article, I will only discuss the preparation of a discovery plan for the exclusive use by an attorney and paralegal.


           A. Identify the Issues:


      Identifying the issues will provide an overview of all of the information necessary to analyze a case for purposes of discovery and case evaluation. This includes, but is not limited to:

      • A summary of the facts of the incident.
      • A summary of the liability issues being asserted against each named defendant.
      • A list of each Cause of Action to be, or already, pled in the Complaint.
      • A list of each potential defense, or actual defense, being asserted.
      • A list of the injuries and damages of each plaintiff, and the relief sought.
      • An overview of the insurance policy limits available for settlement.

           B. Identify the Key Players:


      The next step is to list the identity of the known key players for each party and all percipient witnesses. It is also helpful to note the witnesses contact information and a brief summary of the facts known by that witness.


      With respect to the incident giving rise to the litigation, identify:

      • The individuals who played a role in the event, such as police officers or fire fighters.
      • The individuals who play a role in supporting the damages claimed, such as medical providers, employers, or accountants.
      • The individuals who have knowledge of the event, such as witnesses or unrelated third parties.

           C. Identify the Documentary Evidence:


      For each issue:

      • Identify the documentary evidence to support or defend the issues listed.
      • Identify the location of the records held by each party, or custodian of business records, in both paper and electronic formats.

      With respect to e-Discovery, consider:

      • How a party or custodian of business records creates, stores, and maintains electronic records.
      • What time period the records would have been created, obtained, archived, backed up, or destroyed.
      • Where the records may be located, and if they still exist.

      Take into consideration the most easily accessible locations where the documentary evidence can be obtained. If there are multiple copies of a certain document, identify the sources that are the most readily available and easiest to preserve and retrieve.


           D. Identify the Scope of Discovery:


      Identify the discovery methods that will be required to support or defend the issues listed. This can include documents, deposition testimony, interrogatories, or other discovery methods.


           E. Create a Timetable:


      Chart the scope of discovery identified. Provide the order to conduct the discovery, and a timetable for conducting each element of the discovery plan.


           F. Follow-Up:


      A discovery plan is not set in cement. It is subject to change as the discovery process evolves. It is a good idea for the paralegal to sit down with the attorney at a set time to review the discovery obtained and revise or update the plan as needed.



      Click Here to Read Sample Discovery Plan 



      Clinical Processes for Musculoskeletal Injury

      By Sarah Anderson, MPT


      A morotcycle accident, fall from a rooftop, or typing on a keyboard are all possible mechanisms that can cause your clients an injury.  In the course of your career you will encounter hundreds of clients with musculoskeletal injuries as part of their legal case.  The treatment of a musculoskeletal injury varies depending on the severity of the injury, type of injury, and preference of the physician.  Understanding the steps taken following an injury can help you to better prepare your legal case.


      A musculoskeletal injury is an injury to any tissue in the muscular and/or skeletal system such as muscles, bones, ligaments, discs, and cartilage.  This injury will cause pain, inflammation, loss of function, and even disability.  These structures can be harmed from an immediate impact, or over a period of time with repetitive strains.  The injured person will seek treatment from a physician either in the physician's office or in the hospital.  The physician will decide the most appropriate treatment or test for the patient to undergo for their injury and many times several tests and treatments are ordered at once.


      Often the first order that a physician makes is imaging to the injured area, especially if they suspect a bone fracture or torn ligament, tendon, or disc.  Magnetic Resonance Image (MRI), Computed Tomography (CT scan), and plain radiograph x-rays are typically types of imaging ordered to examine the injured area.  The most commonly ordered imaging is a plain film x-ray because it is inexpensive and a quick way to rule out many serious injuries, such as checking the integrity of the spinal column after a trauma.  This test is limited, however, because the image is only two dimensional.  A CT scan is an x-ray delivered in multiple directions as the scanner moves in a circular path around the body.  A computer combines the data of the many x-rays taken to make an image.  The CT scan is used when parts of the body cannot be seen on a plain radiograph, as in the pelvis or the skull.  The MRI is best to show soft tissue, such as tendons, cartilage, ligaments, and discs.


      When speaking about medical imaging, especially when developing a legal case, it is important to note that findings on medical imaging must correlate with the patient's symptoms and complaints to be conclusive that what the image is showing is actually what is causing the patient's problem.  A New England Journal of Medicine article title "Magnetic Resonate Imaging of the Lumbar Spine in People Without Back Pain" by Jensen et al. concluded that about two-thirds of their asympomatic subject pool had some abnormality appear on their MRI, such as disc bulge, disc extrusion, and degenerative disease.  In other words, two-thirds of the subjects that never had back pain or symptoms still had major abnormalities of their MRI.  You cannot rely on imaging alone for a legal case, and the patient's symptoms and physical examination must correlate with the findings on the image.


      Your injured client will most likely have pain associated with their injury.  To address this, the physician may choose pharmacological treatments, such as pain medication, anti-inflammatories, or muscle relaxers as a treatment.  With certain injuries, the patient will be instructed to take the prescribed medication and rest for a given period of time to allow the injury to heal.  This is a common course of treatment for acute back pain or whiplash.  A brace may also be issued to the patient to assist in the resting process by forcing the affected body part to remain immobile.  If the patient's outcome is unsatisfactory after the specified rest period is over, the physician will often refer the patient to a type of therapy, such as physical therapy, chiropractic, and in some cases acupuncture.  If these areas do not succeed, a more invasive treatment, such as injections or even surgery may be considered.


      Every client with an injury will have different paths of treatment.  Interpreting the various medical steps that can be taken after their injury will undoubtedly assist you in preparing their case.




      April 20, 2011



      How to Create a Discovery Plan


      Clinical Processes for Musculoskeletal Injury


      Recommended Reading


      Quick Links


      Helpful Litigation Support





      The California Litigator



      Barbara Haubrich, ACP/CAS






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      ©Copyright 2010 
      Do you want to use any of these article? You can so long as you include this entire blurb with it:  "Barbara Haubrich, The California Litigator, publishes an e-zine that delivers simple discussions and strategies for the California civil litigation professional.  Barbara’s discussions focus on common paralegal and law office tasks, such as pre-litigation document gathering, document preparation, filing rules, law and motion, discovery, arbitration, trial, deadline calculation, and post-trial procedures.  More information is available at www.thecalifornialitigator.com




      DISCLAIMER: Barbara Haubrich, ACP/CAS, is not an attorney.  Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter.  The information from The California Litigator is not guaranteed to be correct, complete, or current.   Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this newsletter, or to any other website to which this newsletter may be linked.



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