Litigation Publications

HOW TO CREATE A WINNING DOCUMENTARY RECORD FROM INITIAL CLIENT MEETING THROUGH TRIAL

By David B. Zabel and Stewart I. Edelstein

From Your Client

From the time of your first discussion with your client, you should be thinking about – and talking with your client about – documents that may be relevant to your case. It is not enough to just ask: "What documents do you have concerning _________ ?" Instead, talk with your client in detail not only about the documents that the client currently has readily at hand, but also about sources of documents that the client may have forgotten about and documents that likely exist but cannot presently be found. Ask questions like:

• What types of documents does the client typically create?
• Who typically generates documents?
• Who types the documents?
• To whom are documents ordinarily circulated internally?
• To whom were documents concerning the matter at issue sent?
• Who may have received documents concerning the matter at issue?
• Who else may have relevant documents?
• What types of files are ordinarily kept by the client?
• Are computer files kept at individual workstations or in a central database? Are there
        individual PCs that may have stored files that are not on the client's centralized computer
        systems? Have e-mail files been searched?
• What is the client’s policy concerning retention of records? When was the policy
         implemented? Is the policy in writing? Has the policy ever changed?

If so, when?

After you have received from your client copies of the documents gathered as a result of your initial discussions, follow up with the client to inquire whether any additional documents, or additional sources of documents, may exist. Not surprisingly, such follow-up inquiries often identify additional relevant documents that, for one reason or another, were overlooked initially.

From Opposing Parties

Early in the litigation, serve appropriate document requests. See Practice Book 13-9 et seq., and Fed. R. Civ. P. 34. Remember that in federal court in Connecticut, the definition of the term "document" contained in Fed. R. Civ. P. 34(a) is deemed incorporated by reference in all discovery requests in this District, and includes data compilations such as computer files and e-mail. See D. Conn. L. Civ. R. 39. However, the Practice Book does not contain any definition of the term "document" that applies to discovery requests in actions pending in state court. Therefore, any document request that you serve in a state court action should contain a definition of the term "document" that, like the definition of that term in the Federal Rules, is broad enough to call for the production of any e-mails, computer files or similar data compilations.

When you serve document requests, you should calendar the date established by federal or state court rule for responses. If responses are not timely provided, promptly contact opposing counsel to seek compliance. If you do not obtain documents as requested, and no timely objections have been filed, file a motion to compel disclosure or for other appropriate relief. See Practice Book 13-14(b), Fed. R. Civ. P. 37 and Local Rule 9(d). Before filing a Rule 37 motion, comply with the requirement of a good faith conference to secure the disclosure without court action. In state court, consider initiating such a conference, even though not required. If objections have been filed, attempt to resolve the objections with opposing counsel. If you cannot reach an agreement concerning the objections, file a motion to overrule the objections and compel disclosure. See Practice Book 13-10(c), Fed. R. Civ. P. 37 and Local Rule 9(d).

From Third Parties

Your opponent knows what documents your opponent has provided to you. But your opponent does not know what documents third parties have voluntarily provided to you (unless, of course, your opponent serves a request for production of such documents – a request which may or not be subject to a work product objection, depending on the circumstances of the particular case). Therefore, identify and contact third parties who are likely sources of documents relevant to your case, and ask them to voluntarily produce documents.

If third parties will not voluntarily produce requested documents, or if you are at all in doubt as to whether or not third parties have fully complied with your request for documents, serve a subpoena to compel the production of documents. Note, however, that if you obtain documents from third parties pursuant to subpoena, the Federal Rules mandate that prior notice of any such commanded production of documents must be served on each party. See Fed. R. Civ. P. 45 (b)(1). Although no Practice Book provision specifically requires such prior notice of the commanded production of documents by subpoena, the better practice is to serve a copy of the subpoena upon opposing parties. See Practice Book 13-27(a) ("A party who desires to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. . . . If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice."); and Practice Book 10-12 ("It is the responsibility of counsel . . . filing the same to serve on each party who has appeared one copy of . . . every paper relating to discovery, request, . . . or similar paper.").

Remember that third parties include governmental entities, and that you can obtain governmental records through freedom of information acts. See, e.g., Conn. Gen. Stat. 1-19 and 5 U.S.C. 552. Of course, for many public records, such as documents recorded on the land records and records of municipal and state agencies, you may not need to comply with the formalities of the applicable freedom of information act.

If you obtain certified copies, you can take advantage of the authentication provisions of the Connecticut Code of Evidence ("CCE") and the Federal Rules of Evidence ("FRE"). See CCE 9-3 and 10-4, and FRE 902 and 1005. Conn. Gen. Stat. 1-14 provides that certified copies of public records may be admitted in evidence with the same effect as the original, and Conn. Gen. Stat. 1-17, provides that certified copies of public records shall be considered the same as originals for all purposes. Note also the hearsay exception for public documents in CCE 8-3(7) and FRE 803(8), and the procedure to prove the absence of a public record in FRE 803(10).

Supplemental Requests

Under both the Practice Book and the Federal Rules of Civil Procedure, there is no specific limit on the number of document requests you can serve. As you take depositions and conduct other discovery, you may learn about additional documents that are relevant to your case. Follow up in writing with regard to requests made orally at depositions, and serve supplemental document requests as appropriate. Be aware that if you simply ask for documents informally rather than by proper request or motion, you have no remedy if opposing counsel does not produce the requested documents.

Organize The Documents You Obtain

Once you obtain documents from your client, from the opposing party, or from third parties, it is important to organize them. Doing so early on will save time in the long run by allowing you to readily access the important documents relevant to your case.

At the very least, keep the documents you have obtained in appropriately labeled sub-files so that the sources of the documents are readily apparent later on to you and to anyone else working on the case. If the documents involved are voluminous, use a numbering system (such as Bates-stamping, or numbered stickers) to identify and, if appropriate, index the documents. It is virtually impossible to effectively use and keep track of a large number of documents without such a system. In addition, in a discovery dispute about whether a particular document was or was not produced, the use of such a system will help to prove what documents you produced or received.

Comply With Disclosure Requirements

In Federal Court Cases, Comply With The Automatic Disclosure Requirements

In Federal Court in Connecticut, the automatic disclosure requirements of Fed. R. Civ. P. 26(a)(1) now apply. With regard to documents, the initial disclosure must include a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody or control of a party and that the disclosing party may use to support its claims or defenses. Be sure that you timely comply with this requirement. Compliance with Fed. R. Civ. P. 26(a)(1) is required at or within 14 days after the Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the Rule 26(f) conference that initial disclosures are not appropriate.

Respond To Document Requests

When you receive document requests from an opposing party, calendar the date for filing your objections and responses. Review the requests to determine which are objectionable on privilege or other grounds, and make sure that you file timely objections. See Practice Book 13-10 and Fed. R. Civ. P. 34(b).

Forward copies of the document requests to your client, and ask if the client is aware of any documents responsive to the requests other than those previously provided to you in connection with the matter. After you have gathered all documents responsive to the requests, determine which responsive documents are within the attorney-client, work product, or other applicable privilege. Segregate all such privileged documents from the documents being produced, and keep them in separate and clearly marked sub-files so that they will not be inadvertently commingled with other documents and mistakenly produced. In Federal Court actions, prepare a privilege log as required by Local Rule 9(d)1. In State Court cases, provide a similar privilege log if requested.

Once you have assembled the documents to be produced in response to the requests, mark or specifically identify them in some fashion (by Bates numbers, numbered stickers, or otherwise), and keep them in a separate sub-file. This will help to avoid any dispute later on about whether or not a particular document was produced as required.

Comply With The Continuing Duty To Disclose

You have a continuing duty to disclose additional documents, as provided in Practice Book 13-15 and Fed. R. Civ. P. 26(e). Be sure you comply with these requirements. If you fail to do so and then seek to introduce into evidence at trial a document you have not disclosed, opposing counsel may have grounds to exclude that document from the trial record.

Determine What Documents You Require For The Trial Record

In a typical case, the documents you have obtained from the steps outlined above will be more voluminous than the documents you need for your trial record. Therefore, review the documents you have obtained to determine which documents you need to get into the record at trial. In determining which documents you need to get into the record, review the pleadings, focusing on each element of each cause of action and each defense. Double-check your discovery responses to make sure that you have disclosed all the documents you want to use, to the extent they are the subject of document requests.

Do not wait until shortly before trial to do this analysis. Before the discovery period ends, check to make sure that you have obtained all of the documents you require. Otherwise, you may realize on the eve of trial that you have a documentary hole in your case.

Consider Requests To Admit To Avoid Evidentiary Issues

You can avoid evidentiary issues at trial, and streamline the trial, by filing requests to admit not only as to facts, but also as to documents. See Practice Book 13-22 et seq. and Fed. R. Civ. P. 36. For example, you can establish the existence, genuineness, and due execution of documents, and the requisite elements for the business records exception to the hearsay rule, through requests to admit (see FRE 803(6), CCE 8-4 and Conn. Gen. Stat. 52-180). If the opposing party does not make a requested admission and you prove at trial what the opposing party has refused to admit, you can also seek an award of the expenses incurred in making your proof, including reasonable attorney’s fees. See Fed. R. Civ. P. 37(c)(2) and Practice Book 13-25.

Prepare Summaries Of Voluminous Documents

The contents of voluminous writings, recordings, or photographs, otherwise admissible, that cannot be conveniently be examined in court, may be admitted in the form of a chart, summary, or calculation, if the originals or copies are available for examination or copying, or both, by other parties at a reasonable time and place. See CCE 10-5 and FRE 1006. If you have voluminous documents, such as bank records, which can be more effectively presented at trial by a summary document, comply with these rules. Note that you must make the underlying documents, or copies of them, available to opposing counsel at a reasonable time and place before you can put the summary into evidence.

Determine How You Will Get Each Document Into Evidence.

For each document you have decided to make a trial exhibit, determine the witness through whom you will introduce the exhibit, and anticipate any evidentiary issues related to that document. Research those issues, and be prepared to present appropriate authority to the court supporting the admission of the document, such as CCE and FRE references or applicable caselaw. Be mindful that the official commentary to the CCE includes references to relevant Connecticut cases you can cite to the court. At trial, provide copies of key cases to the court and, of course, to opposing counsel.

Likewise, anticipate evidentiary issues as to documents opposing counsel may want to put into the record at trial, and be prepared to present authority to the court concerning your objections, including the filing of a motion in limine, as appropriate.

Make Your Documentary Record At Trial

Prepare a list of all exhibits you intend to offer as evidence at trial, even if the court does not require that you do so. Then, determine with opposing counsel before trial which documents can be marked as full exhibits by agreement. Both the court and the jury will appreciate the efforts of counsel to streamline the introduction of documents, which can be tedious if not handled properly.

At the appropriate time during trial, introduce into the record those documents which do not require witnesses for their introduction, such as certified copies of public records (see CCE 8-3(7), 9-3, and 10-4, Conn. Gen. Stat. 1-14 and 1-17, and FRE 803(8), 902, and 1005); responses to requests to admit and responses to interrogatories (see CCE 8-3(1) and FRE 801(d)(2)); and deposition transcript excerpts and other written statements by the opposing party (see CCE 8-3(1) and FRE 801(d)(2)).

Keep in mind the rule of completeness in Practice Book 13-31(a)(5), CCE 1-5, and FRE 106. CCE 1-5 provides that when a statement is introduced by a party, the court may, and upon request shall, require the proponent at that time to introduce any other part of the statement, whether or not otherwise admissible, that the court determines ought in fairness to be considered contemporaneously with it. It further provides that when a statement is introduced by a party, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court determines ought in fairness to be considered with it. Practice Book 13-31(a)(5) has an analogous provision for deposition transcripts. FRE 106 provides that when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought, in fairness, be considered contemporaneously with it.

If opposing counsel raises an objection based on the "best evidence" rule in CCE 10-1, remember that CCE 10-2 provides that copies are admissible unless a genuine question is raised as to the authenticity of the original or the accuracy of the copy, or it would be unfair under the circumstances to admit the copy. See also CCE 10-3, which describes the circumstances in which the original of a writing, recording, or photograph is not required. For the analogous Federal rules, see FRE 1002 to 1004. See also CCE 8-4(c) for admissibility of copies (rather than originals) of business records, and the exception to the best evidence rule for admissions of a party as provided in CCE 10-6 and FRE 1007.

Determine before trial through which witness you will introduce each exhibit for which you need a witness. If it is your own witness, be sure he or she is familiar with the document and knows what you will ask about it. If you intend to get a document into evidence through a hostile witness whose deposition was taken, include in your trial notebook for that witness the applicable transcript references supporting admission of the document so that they are immediately at hand in the event of a dispute.

As exhibits are put into the record as full exhibits, so indicate on your exhibit list. If you have marked exhibits only for identification, note that on your exhibit list. Before you finish with each witness, and before you rest your case or defense, make sure you have put into the record all of the documents you intended to put in the record. Also, make sure that the clerk’s record of exhibits is the same as yours.

Some Practical Tips For Preparing And Using Documents At Trial

• As you assemble the documents you intend to put into the record, check to make sure that you have redacted extraneous markings on the documents that were not on the documents as they were produced or received, such as your handwritten notes and fax transmittal information by which documents were conveyed to you. Also, make sure you do not inadvertently include any privileged documents with the documents you intend to put in the record.

• Make enough copies of all documents you intend to put into the record for the judge, opposing counsel, and your own file.

• Prepare a 3-ring notebook containing all of your proposed exhibits, with a list of your proposed exhibits in the front. Arrange the exhibits in chronological order, or in the order in which you intend to introduce them. Insert a numbered tab in the notebook before each proposed exhibit. Unless you intend to introduce documents you have not disclosed (and were not required to disclose), consider making copies of this 3-ring notebook available to the trial judge, the judge’s clerk, and opposing counsel, before trial begins. At trial, such a 3-ring notebook is effective in helping you and, more importantly, the judge, to keep track of and read documents as witnesses testify about them.

• If a pretrial order requires you to submit a list of proposed exhibits before trial, keep in mind that you may be precluded from introducing documents not on that list. Consider adding to your list a category for documents subpoenaed for trial and a category for impeachment and rebuttal documents (without identification of specific documents).

• Include a section in your trial notebook that contains your opponent’s responses to your discovery requests. If, at trial, your opponent seeks to put into the record a document which your opponent should have disclosed but did not, object to its admission on that ground.

• If a particular document is vital to your case, consider making an enlargement of it on posterboard, and displaying it on an easel during the trial.

Once you get a document into evidence, use it. If you have a jury trial, publish the document to the jury and make extra copies for the jurors to review, as appropriate, with the court’s permission. Documents can only be compelling and persuasive evidence if they are obtained, organized, and then properly used at trial.