How to Create a Discovery Plan

By Barbara Haubrich-Hass, ACP/CAS

06/28/2011

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 plaintiffs 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.

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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: 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.
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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.

Example Discovery Plan: DISCOVERY PLAN Sally Smith vs. Kent Jones; Acme Delivery FACTS: Clients: Sally Smith and Jerrod Smith, husband and wife. Date of Incident: April 1, 2010 Time of Incident: 9:30 p.m. Location of Incident: Intersection of Inyo Springs Road and Mono Lake Avenue, Anytown, California. Vehicles/Owners: 2010 Toyota Camry owned by Sally Smith and Jerrod Smith; 2008 Ford Van owned by Acme Delivery. Summary: At the time of the incident, Sally Smith was driving her 2010 Toyota Camry northbound on Inyo Springs Road. Sallys husband, Jerrod Smith, was the restrained right front passenger. The 2008 Ford Van was being operated by Kent Jones, an employee of Acme Delivery. The Anytown Police Department responded to the scene. Upon arrival, Officer Williams obtained statements from Sally Smith and Jerrod Smith who provided the following statement: She was traveling northbound on Inyo Springs Road. The traffic signal had sequenced to red so Sally brought her vehicle to a complete stop. When the light sequenced to green, Sally proceeded to enter the intersection of Inyo and Mono at which time she was struck by a 2008 Ford Van travelling eastbound on Mono. When Officer Williams approached the Ford Van, he noticed an empty bottle of whiskey on the front seat of the vehicle, and smelled the odor of alcohol on the person of Kent Jones. Kent Jones was unable to
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provide a statement due to his level of inebriation. Witness, Debra Marks, stated that she was travelling eastbound on Mono Lake Avenue behind the 2008 Ford Van. Ms. Jones stated that just prior to the collision the Ford was travelling at a high rate of speed, swerving between traffic, and ran the red light causing the collision. The Anytown Police Department determined that Kent Jones was the at-fault party for causing this collision. Kent Jones was cited for driving while under the influence of alcohol, excessive speed, and failure to yield the right-of-way to vehicles with a green light. Kent Jones was taken into custody and charged with felony DUI causing severe bodily injury. Photographs of the scene were taken by the Anytown Police Department. The Anytown Fire Department was called to the scene to use the jaws of life to extract Sally Smith from her vehicle because her left leg was crushed under the steering column. At the scene, Jerrod Smith had complaints of pain to his low back. Sally was taken by Anytown Ambulance Service to Mercy Hospital for emergency medical treatment. THEORIES OF NEGLIGENCE/CAUSES OF ACTION: A. Theories of Negligence: Against Defendant, Kent Jones: 1. Was in the course and scope of employment. 2. Negligent in the operation of motor vehicle. 3. Gross negligence in driving while under the influence of alcohol. Against Defendant, Acme Delivery: 1. Respondeat Superior. 2. Negligent Entrustment. 3. Owner of motor vehicle that provided permission to operate to Kent Jones. B. Causes of Action: Against Defendant, Kent Jones: 1. Motor Vehicle Cause of Action on behalf of Sally Smith and Jerrod Smith. 2. Exemplary Damage Attachment on behalf of Sally Smith and Jerrod Smith. Against Defendant, Acme Delivery: 1. Motor Vehicle Cause of Action on behalf of Sally Smith and Jerrod Smith, including ownership of vehicle, permissive use, negligent entrustment, and course and scope. Against Defendants, Kent Jones and Acme Delivery: 1. General Negligence Loss of Consortium on behalf of Jerrod Smith for the loss of services of
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his wife. 2. General Negligence Negligent Infliction of Emotional Distress on behalf of Jerrod Smith for witnessing his wifes severe personal injuries. KEY PLAYERS: 1. 2. 3. 4. 5. 6. 7. 8. Sally Smith Jerrod Smith Kent Jones Officer Williams Debra Marks Anytown Fire Department personnel to be determined Anytown Ambulance personnel to be determined Medical personnel

POTENTIAL DEFENSES: 1. Kent Jones was not in the course and scope of his employment at the time of the collision. 2. Kent Jones did not have permission to operate the vehicle. 3. Acme Delivery did not entrust the vehicle to Kent Jones. INJURIES/DAMAGES: As to Sally Smith: Crushed left leg requiring amputation of the left leg above the knee. Medical Specials to date: $215,987.89; Loss of Earnings: $50,398.00 and ongoing; Future Medical Specials: Undetermined at this time; Loss of Earning Capacity: Undetermined at this time. As to Jerrod Smith: Low back strain. Medical Specials to date: $15,498.00; Loss of Earnings: $4,567.00; Future Medical Specials: None; Future Loss of Earnings/Earning Capacity: None. INSURANCE LIMITS: Acme: $1 million combined single limits. Smith: UM/UIM 100/300 DOCUMENTARY EVIDENCE: 1. Police Traffic Collision Report and police photographs. 2. Fire Incident Report.
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3. 4. 5. 6. 7. 8.

Obtain the witness statement of Debra Marks. Obtain injury photographs of Sally Smith. Property damage records to the Smith vehicle. Property damage records to the Acme vehicle. 911 tapes from Police Dispatch. District Attorneys investigation on Kent Jones, including all photographs, video tapes, investigation reports, and documents reflecting the blood kit/draw, PAS sample or any other toxicology reports relating to the DUI. 9. Criminal background information on Kent Jones relating to prior DUI charges. DISCOVERY PLAN: To be completed within 100 days after filing of Complaint. A. Against Defendant, Kent Jones: 1. Immediately serve Form Interrogatories. 2. Immediately serve Request for Production of Documents requesting: i) Witness statements. ii) Photographs. iii) Property damage records. iv) Employment records of Kent Jones to support course and scope of employment. v) Cell phone records of Kent Jones on the day of the incident. 3. Immediately serve Request for Admissions admitting: i) Course and scope of employment. ii) Liability. iii) Permission to use vehicle. iv) Reasonableness of medical billing. v) Reasonableness of medical treatment. B. Against Acme Delivery:

Send the same discovery as outlined for Kent Jones. C. Immediately subpoena: 1. DMV records of Kent Jones. 2. Criminal file of Kent Jones from District Attorneys office [if D.A refused to produce prior to litigation] D. Depositions: Upon receipt of written discovery responses, set the following depositions: 1. Kent Jones 2. Person Most Knowledgeable of Acme Delivery regarding the employment status of Kent Jones at the time of the incident. 3. Officer Williams 4. Witness, Debra Marks
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E.

Experts:

Immediately retain the following experts: 1. Samuel Adams, M.D., Toxicologist, to determine level of intoxication of Kent Jones to support the claim for punitive damages. 2. Jan Roughan, RN, Life Care Planner, to determine medical life care needs of Sally Smith. 3. Tamorah Hunt, Ph.D., Forensic Economist, to determine total loss to Sally Smith. 4. Rick Sarkisian, Ph.D., Vocational Rehabilitation, to determine future earning capacity of Sally Smith. Docket for Discovery Review for Possible Update of Plan: 120 days from date of filing of Complaint.

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Copyright 2011 All Rights Reserved DISCLAIMER: Barbara Haubrich-Hass, 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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