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hello i'm henry quillian we're here at taylor english duma talking about litigation fundamentals within the group here we refer to this as quillian's kernels as we all know we are going through the federal rules of civil procedure sort of beginning of trial beginning of a lawsuit really until the end of trial and uh we're at the stage where we've already talked about the service of the complaint the creation of the complaint the service the complaint uh the answer to the complaint or motions to dismiss appearances by defendants thereby and now we're working towards and we've talked about the preliminary planning conference electronic discovery issues other issues relating to uh electronically stored information and then all the other things that go into that joint preliminary and planning conference and now we are looking towards something called initial disclosures as part of starting one of these videos which ultimately will be shown on the web we must remind people out there that we are not providing legal advice this is a discussion regarding practice tips you need to rely on your own self if you're an attorney appropriately practicing in the jurisdiction where you're practicing or your local council for advice regarding the specific district rules that you're dealing with and also you should not try to litigate on your own if you're not a lawyer especially in federal court where things can get very tricky one of the things about this initial disclosures that we're talking about today is uh avoiding having your pants well i was about to have your pants down at the trial when you want to introduce evidence and you can't does anybody know the source of the requirement that something named initial disclosures has to take place in a federal court litigation anybody 26 rule 26 of the federal assault procedure right and uh in the northern district of georgia rule 26 is uh substantially i guess jimmy with not really changed but the rule federal civil procedure 26 a is the one that requires disclosures and then there are a whole bunch of local rules uh relating to the form of the disclosures how you're supposed to go about doing it when you're supposed to do it now what are the general purposes of initial disclosures in medical yes so that the judges can determine whether they might have some type of conflict than hearing the case this one well that would be one yeah there's a there's a certificate of um of uh conditioned parties uh that would directly indicate to the judge do i have stock and the company that's involved or is one of the people my kinfolk and then there's initial disclosures which provides a whole lot of additional information right up front in addition to what's in the pleading about the case now does anybody recall when we were talking about going to the federal i mean excuse me the georgia civil practice act the procedure of serving discovery with the complaint right we talked about the pros and the cons whether to go ahead and get discovery started by serving discovery or not what kind of discovery you'd want to serve what kind you might not want to serve up front well uh when the federal rules were amended and i'm just thinking back i think it was 1997 maybe when they first made these was at 94 somewhere back then they've been working on them for a period of time but yes it was way back i guess it was in the 90s when they amended these rules to add these initial disclosures as a requirement and i call it sort of a disgorgement requirement that the federal court places on litigants that just by reason of litigating in federal court you have to cough up a significant amount of information about your case and then early on in the case would that deter anybody from bringing a lawsuit in federal court potentially okay and how could it deter somebody from bringing a lawsuit in federal court then they would have to actually research their case and make sure it's a good feasible lawsuit they don't want to get it kicked out or embarrassed or have to do extra work if it's not going to survive past emotion just miss et cetera okay so well so and and right up front early on in the case of course the defendant you don't have much choice but if you're the plaintiff you might need to look at what you would have to disclose if you did sue in federal court without anybody ever asking i mean there are litigations that go through where the where the opposing party never asks the right question right never seeks disclosure of what you may be worried about disclosing as a party but in federal court as we'll go through there are things you have to disclose by reason of the rules that it would be if if you've got a smoking gun that's going to kill you that's going to be problematic for you or embarrass you and cause you to be subject to really public ridicule or whatever and you're the plaintiff you might not but you have to bring a lawsuit you might not want to bring it to federal court because then you're going to have to disclose it you have to disclose it just by raising the rules and you're sort of shooting yourself on the book but one of the things that's good about being in federal court is a certain amount of work is done for you just by reason of getting the complaint filed getting it served getting your joint preliminary planning conference done and submitting your proposed planning schedule because what's going to happen shortly thereafter you're gonna get this disgorgement from the other side that you have to make yourself regarding what's your case about and what's the other and the other side has to come forward and provide all this information okay so i mentioned well well actually chantal mentioned federal rule is still a procedure 26a and uh if you would you dig through that you'll see uh and it would be applicable in other places unless their other places are amended by the local rules various times that various things have to have to take place and under the rule 26 a capital c it says the time for initial disclosure is a party must make the initial explosions at are within 14 days after the party's rule 26 f conference unless a different time is set by stipulation or court order or unless a party objects during the conference to that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan so if the disclosures that are required by the rules are objectionable i think we discussed that briefly last time you can raise but you have to put it in your preliminary discovery plan what those objections are what the basis of them are and uh who who thinks that you have to have some reasonable legal foundation for an objection to providing initial disclosures everybody okay yes uh it basically uh takes care of that for you here in the federal rules if you look uh it says under 26 a capital e uh unacceptable excuses a party must make the initial disclosures based on the information then reasonably available to it a party is not excused from making exclusions because it is not fully investigated the case or because it challenges the sufficiency of another's party's disclosures or because another party has not made its disclosures so basically you can't say to the other side but you haven't done it so i'm not going to do it and you also can't say the other side i'm not going to provide you my information because you haven't done a good enough job providing me your information you also can't say discovery is just starting i haven't done the investigation i don't know anything to disclose so under this rule what do you have to do prior to writing down on paper what your initial disclosures are prior to the deadline of the initial disclosures for the day of the initial disclosures conduct a reasonable investigation as to the basis for your suit okay conduct the reason for your expenses right so so you can't just tell your client uh what do you have the client says i don't know it's in the warehouse and then on the day of your initial disclosure so we don't know but it's in the warehouse you have to actually identify what the regal reasonable scope of the relevant evidence and information and things is and be prepared to describe because uh under the local rules uh local rule 26.1 this is one of those wonderful instances where the local rule number somewhat jobs with the federal procedure number it says you have to do this and you have to use a specific form that's provided by the northern district of georgia to go through these initial disclosures and truthfully and faithfully respond to that the requirements of that form but under rule 26.1 a the timing is different under the local rules than it is under the um federal rules so what does that tell you about when you get a lawsuit in a particular district read the book read the rules and read the local rules when in doubt what do you do read the rule all right so uh if you think you know the federal rules of civil procedure is that enough if you're litigating in any federal court no no and if you were to look at the local rules what should you look to in addition to the local rules each judge standing order he's judge's standing order and uh frankly that's apparently becoming more uh common in the state court system at least in the superior courts where judges have individual standing orders in fact the other day i think don was with me i accused one of the superior court judges of copyright infringement because i saw all sorts of metadata relating to judge story's standing order and the superior court judge's order basically mentioned yeah or she yeah i don't yes it was basically the same order they just adopted wholesale from the federal court so so some again i won't say more or less sophisticated some more rigid uh superior court judges are adopting standing orders that require things more than what the rules require so looking at rule over rule 26.1 a of the northern district of georgia it says the party still civil to civil action shall make the initial disclosures required by federal silver cedar 26a1 at or within 30 days after the appearance of a defendant by answer promotion rule 26 said within 14 days of the 26 f conference that could end up being the same day or might end up being a different day than required by the local rules is there any requirement is there any uh thing that prohibits you from making your initial disclosures early i don't think so no no you might not want to make them before you do your preliminary planning conference rule 26 conference because they might just you might tip the other side off to something additional or whatever but you could you could go ahead and provide the information right away and you probably ought to already be preparing your initial disclosures before you go to the role 26f conference because what do you have to do in your preliminary planning report if you don't like your initial disclosures or having to make them include objections include objections which have to have a sound basis for them so you have to think about that in advance and then it goes on to say uh expert disclosures shall be made as required by federal services procedure 2682 and by local rule 26.2 c and then it goes on to talk about pre-trial disclosure so this rule basically talks about all the mandatory disclosures you have to make during the course of the litigation up to trial and we'll go through what happens if you don't do that uh okay another question before you even go there i haven't experienced this but what do you do if you have something that's highly confidential or trade secret information and the initial disclosures kind of requires you to get into that but you can until you have a protective order in place what do you how do you handle that is that just with the objections saying hey i can't do this because we don't have a protective order please cody uh could be a multi-fold response what kind of case is it um let's say it's intellectual property okay what kind of intellectual property case if it's a patent case there are special rules that have automatic automatically in place confidentiality order with respect to patent cases separately you'd either have to object and not produce or get with the other side negotiate a proposed confidentiality agreement or order relating to the discovery and then also if you look at the initial disclosure rules there's not actually a requirement and we'll go through this of producing or providing the actual documents right there with the disclosures that is one option but it's not the absolute requirement so you can bring your objections find a way to seek confidentiality and to get an enforceable format usually an order and i don't know that you can claim that witnesses are confidential so it's mainly going to have to be something else that would be confidential like documents or numbers or technology or things like a piece of equipment or something that you would have to seek protection for does anybody have any practical uh observations regarding how to get those confidentiality orders in place or when you how early it is you can call a judge and start asking for hey first thing you do is talk to opposing counsel because if you can work it out that's what judges want you to do if you can work out a confidentiality order and tell the court that both sides agree that you need this in order to have full disclosure as required by the rules most judges are very happy to have that happen okay and then the question is how tight how rigid how demanding confidentiality order do you want to try to get in place because the they get more and more burdensome the more and more levels of confidentiality the more restrictions you put on the documents uh the more and more if you make things for instance a whole lot of things attorney's eyes only it's gonna hamper the client's ability to learn about the case it might hamper the ability of the client to teach to help the lawyer understand the case so there has to be that balance in this but not favored keeping things from the client although there's situations where you can maybe make an argument that that's appropriate it's hard to sell it right closing council typically won't agree and the court has to deal with it you have to make a case it's hard to make that if the party learns about the confidential information that they will somehow abuse that knowledge or maybe the case is even being brought for the purpose of getting access to this information which will otherwise not be accessible and you would have to make sure that you'd have to have a case that the information is actually still relevant financial data from 15 years ago might not be worth anything to anybody right just because it's financial formula probably is all right coke formula they claim it would be uh so rule 26 point local rule 26.1 b actually directs you specifically to a form that is within the rule book which says uh the court has prepared a form initial disclosures which council shall be required to use so does that mean you get to make up your own form don't think so no here's the form uh i'm sure we have it on the system but don't just go on the system and just grab a form and assume that it's one that's the most updated form you better make sure it's the right form or consistent with the standing order of the judge again because uh if you march through the whole thing and fill it out that's not the right form then at least it could be embarrassing at most it could be problematic and they say you can go to the counter at the federal court and pick up a copy how many people have done that no nobody who's ever been to the clerk's office at the federal district court yeah i am i don't know the gray hair i used to be the place that you would that you would normally go to get everything done and i don't know what they did with all those employees but uh in any event you could also they in the olden days they would actually just have all the cases to stack there and you could go through the stack of cases and look to see what had been filed that day it was if at least it was an interesting endeavor your clients probably didn't don't want to pay for unless they're commissioning you to do it okay it says no modifications or deletions to the form shall be made without prior permission from the court all disclosures must be answered fully in writing and compliance of federal law so procedure 26 but they make a little note see also federal assault procedure 37 regarding blank what is what would that what would fill regarding i'll give a hint failure to make disclosures and sanctions that's nice of them to point that out to us and it also goes on to say what what to do if there are multiple parties that's got a series of rules but basically everybody's got to everybody that's a party to the litigation has to provide initial disclosures and then the attorney has to sign the the disclosures and uh under rule 26 g1 and there are sanctions if appropriate for failing to do that uh and for signing it when you're not complied appropriately with the initial disclosures it says for purposes of this rule any time period stated to run from the appearance of a defendant will run from the date the case is removed the remove case is filed in this court so that gives you the timing for having to do all this if the case gets removed now let's look at the form there's a plaintiff's form and there's a defense form they're not dramatically different but there are some differences uh first of all you have to state the classification of your cause of action and give a brief outline of the case that's probably very similar to what you did in the preliminary planning report a lot of people just copy the same statement case from one to another but it gets harder describe in detail all statutes codes regulations legal principles standards and customs or uses and illustrative case law which plaintiff contends are applicable to the action is that easy nope if you're a non-lawyer is it easy no no uh what does the word all mean and so that means what should you think about before you even file your lawsuit legal research and getting a what from your client because that's that's one of the things you always got to think about if you go and say oh we're going to go file a federal lawsuit you can file a state lawsuit without having to know everything about your case filing federal court you got serious problems you're going to try to detail all the statutes codes regulations case law et cetera that might impact your case all right now here's we're getting to import another question in practice i've seen a lot of initial disclosures normally they're not very substantive it's just like they'll cite the statutes and say at all or something like that and they won't really go into any real detail and i'm assuming that's the standard i don't think you have to apply the statute to your facts you just have to cite the statute yeah but to me there's a question whether you can just cite like the contract code of georgia as opposed to the individual code section if if challenged on it i don't think that dog would hunt yeah so you might end up getting a shot by some scatter shot or something if you if you get if you if you don't do it well you're gonna have to somebody's likely to make you do it over although i've got a case right now where i don't think the defendant has done anything in compliance with the initial disclosures but we haven't taken the task on it yet but in time we might okay uh so that's a lot of legal problems there is the longer you sit on that the less likely the judge is gonna take action well we're doing uh very comprehensive other discovery which is much more comprehensive than initial disclosure so yeah that's where we're not worried about it as much got it but i agree uh in fact i think there's been we'll take this up in a second but there have been cases where the judges have uh basically undone the initial disclosures by reason of parties not being active and enforcing the initial disclosures are they let people off the hook okay so here we have the third section basically it says list all that identify all the people using name address phone number etc of each individual likely to have discoverable information that's pretty broad right rule 26 that you may use to support your claims or defenses and then it says unless solely for impeachment identifying the subjects of the information so here's something where you actually have to tell the other side i know these people have information and here's the subject matter they may know does that include only the people that are good for your case no well i don't know that's the way i agree with boyd that's the way i've always understood it i'm looking at the rules here it says which you may use to support your claims or defenses now you can interpret that to mean your claims or defenses or your claims or defenses the problem is so many witnesses you will they don't fall exclusively into a support or non-support category if they're going to support you at all there may be stuff they know that's not helpful right the guy might say i know the other party ran the red light but but you were speeding something like that right and usually in an employment case it's a former employee that made the firing decision or played some important role it's like well they might be adverse to the company because they no longer work for the company but they were a decision maker so you should have to identify them so uh there's the chances of if you don't list somebody unless you got the laziest people on the other side of the case they're gonna get listed like you say you're like you're likely gonna want them for one thing and you just hope you get by with whatever they're gonna testify against you they're rarely very rarely people that are totally one-sided that don't have anything for the other side to use so in the end of the day i think boy is correct i was making an argument regarding the wording so what is this unless solely for impeachment what is impeachment i thought impeachment was where you gotta witness themselves to uh or use documents or something to make the witness uh trip up on themselves and admit that i was wrong i was wrong i i've never identified a witness that would be solely an impeachment witness i didn't i can't remember him handling a case where that i had that kind of situation anyway i don't quite understand why that provisions you might uh well there's there's been a case out there what is it the baker case yes where a very strange circumstance in rose what was that natalie okay so for you guys who care this is the united states district court for the southern district of georgia this is a 2009 case and it actually is very interesting case there was two witnesses there was an expert type witness and then there was a fact witness and the plaintiff was seeking to pro to prohibit the defendants from calling both the expert and the fat witness because they didn't disclose them in the initial disclosures and then they also didn't um include them throughout the whole discovery so they never got to depose the so-called expert so then the um plaintiff was arguing that the expert witness has to be excluded from the case based on the rules and the defendant said well not so much the expert witness is not really an expert witness we're only using this ex this witness to for impeachment purposes of another expert and the court said no that's not going to work based on the rules you have to disclose all of your expert witnesses and even if you're using them to impeach another expert then you still have to disclose them as an expert witness however with the lay witness or the fact witness the court said you can't use that witness for as a fact witness per se but what you can do which is your to support your case to support your case but what you can do which kind of loophole is you can use that witness to rebut any facts that the other side says so even if you were sloppy and you didn't put the witness in your disclosures and you didn't identify the witness and you didn't depose them etc you still could have a potential loophole to get that witness in or to get that witness's testimony in but you'd have to get it in in the way of of impeachment or through that through that mechanism and in case you want to know the rules um so for the fat witness or the late witness it says that a party need not disclose those individuals whose testimony will be used only for impeachment this is federal rule of civil procedure 26 a1 capital a lower case i with respect to an expert witness you have to disclose you have to disclose them no matter how you're using them so where party fails to make the required disclosures the court must prevent that party from using that information or witness by evidence of trial federal rules civil procedure 37 c1 so expert witness back witness treated differently okay let's do a little comparing contract who was the judge on that case that [Applause] judge william t moore chief judge united states district judge 2000 southern district yep 2009 so there would be a sample where a party a person might be used solely as an impeachment witness and then i think what you would want to do is you would want to ask witnesses from the other side various things that they would get wrong hopefully touching on all the subject matters the person that didn't list earlier could come in and piece them on that would that would somehow make your case better you're only talking about trial testimony now so that depends on what's what's actually offered in trial right oh and that is actually a point uh that if you fail to disclose uh you might you can't use and i'd have to dig for a little bit but you can't use this per these people for contesting summary judgment uh or other uses in support of motions and hearings if it's on something other than if it's on a substantive issue in the case so failure to disclose has more impact than solely on trial i think we'll probably run across that language when i go through here i just don't have it at my fingertips but i guess it would be under rule 37 c i believe thereabouts here we go uh that's a rule federal civil procedure rule 37c one and it says that the party fails to provide information or identify a witness as required by rule 26 a which is the initial disclosures or e the party is not allowed to use that information that's pretty broad or witness to supply evidence on a motion at a hearing or at trial unless the failure was substantially justified or is harmless and in natalie's case they found that the failure disclosed the expert was not harmless and so and there was not no adequate showing that it was harmless or fairly disclosed so they didn't get away with that now let's contrast for a second what can you do apparently in a state court of georgia case if you haven't disclosed an expert before a trial just this is closing ladies and gentlemen yeah okay so unlike in federal court where you're very likely to have that expert excluded in state court there are remedies that are forced to fund i would say they're probably forced to fund trial courts by the appellate courts which require the court to allow a continuance of the trial for the opposing party to go ahead and depose the expert at night in the middle of trial having not had the opportunity to prepare more than likely because they've been preparing all the other stuff for trial and then they can know what that expert's going to come testify about the next morning probably three hours after they do the deposition so that's the remedy in state court so uh so what you're saying is there's no matlock moments in federal court but there are many matlock moments instead yeah there we go also known as chantal moment [Laughter] so federal court got to be careful playing around with not disclosing okay and i have a question before you get started and this has bothered me and i don't even know what you're supposed to do but i had a case in state court we went all the way through discovery three months out of discovery we never heard from the court never ever heard from the court we actually settled the case three months out of discovery but the court was just never involved they never sent us anything kind of thing but what's your point i mean i just thought that was odd strange i mean didn't you seek a smaller government are they out of your life well that's because you have the rules who needs the court right the rules take care of all that stuff right boy no you got to have the court to enforce it but it's not unusual because of caseloads okay the courts just you know they just let a case sit for a while yeah they're they're activist judges or judges who are active i should say probably it's a better thing who will call you in early on require a scheduling conference let you pin you down as to dates try to get you to settle bang heads some and there are other ones that just let it dawdle on and as long as the lawyers are getting along all right nobody's fighting like cats and dogs the court stays out of it until emotion is filed but then just in a practical sense what do you do if you actually wanted to go to trial like that case settled we were able to we were working really well together but if you i had somebody who didn't want to court and tell them you're ready for trial ask them put it on trial calendar okay so how would that would that be just uh emotion like whoever the case is assigned to or if it's in one of those courts where they don't assign cases you you know send it to the presiding judge you just be proactive yeah in fact this is an aside because we're talking about federal court but there's some superior courts and i assume state courts usually i found these are in outlying counties where they don't have big computer systems that are driving their dockets and all that uh who if you don't if you file a motion you they won't even set a hearing on the motion or won't decide the motion unless you file a real nice eye and set a hearing bring it to the judge's attention and get it on one of their calendars illness the motion will just sit around forever so you do you have to be proactive and except for those circumstances where your client has said just lay low and see if nothing happens you need to be proactive to make things happen so getting back to the initial disclosures we've already pointed out that rule 4 requires you to disclose your experts and of course it recites the federal rules of evidence that cause an expert to be an expert 702 703 705 and usually you will also have a scheduling order that's on top of these that if because most of most of the time people will put in response to initial disclosures we haven't identified an expert yet maybe the plaintiff will maybe the defend then the defendant probably won't unless they've just been ready for this litigation to get teed up or in case they have uh employees that are experts they already know are going to be an expert on the matter or if they have a sort of an export on call expert on call for lots of different cases but you got to make sure though that if you don't list somebody now that when you actually are ready to disclose an expert and in a timely manner that you do go back and amend your initial disclosures otherwise your initial disclosures don't show any experts and yet you're going to try to use them okay documents uh paragraph five on the forum says provide a copy of what should be the most straightforward thing you could do and i'm going to skip over all documents data compilations or other electronically stored information and tangible things in your possession custody control that you may use to support your claims or defenses unless solely for impeachment that would be one opportunity that would be one option that would be a really nice case where you can just staple them to the back of the initial disclosures and that's all you got what what kind of case would be appropriate for that assuming you can get it in the federal court maybe a collection suit yeah a suit on a note or something where you just you just attach the note and hopefully it's more than 75 thousand dollars and that's diversity you just imagine but the for a lot of our complex litigation the more likely thing is or it says provide a copy of or a description by category and location of all documents data compilations and other electronically stored information and tangible things in your possession custody or control and uh and then it goes on to say identifying the subjects of the information attach document lists and descriptions to initial disclosures as attachments see so how detailed is that list very general yes general for the most part but the risk you run is the more general it is that you are deemed later to have not been sufficiently forthcoming and you're limited in terms of what you can use so if you don't get the locations how likely are you likely to be harmed by that how likely are you to be caught not having comply i don't i don't know if that's very routinely enforced um you can just say they're available through council and i think that is acceptable it seems to me like that if it's a non-party that you have control over something in some way or another or it's a distant location or someplace where the if the lack of notice to the other side might be really substantially make a real difference in the discovery you better put these documents on the uh the deserted island in south pacific as opposed to you know they're in the possession custody and control of the of the defendant because most people might have to do something to enforce you getting those documents for them but yes um i've definitely seen this where basically the defendant says i have documents and there are this type business records and uh you know they're in the possession of the defendant something like that which i don't think complies with the rules because it doesn't give uh the subjects of the information that are in the documents or what kind of diagnosis they are yeah and there is this exclusion that says unless solely for impeachment so what kind of document would be a solely for impeachment document well i don't know if there's an issue of payment maybe you got a canceled check okay a conviction okay a conviction there we go got it it's got to meet the requirements for impeachment under the federal rule and i i've always viewed the you know the phrases except for purposes of impeachment as just being a safety net if at some point in the future the opposing party raises something that that was not reasonably foreseeable and and i need to respond for it they respond to the fact that i haven't identified a document out that i want to now use solely for impeachment to what you just brought up you know where i haven't identified a witness that i'm not going to be you know foreclosed because because i didn't way back when and include that in my in my disclosures but i've never thought of it as sitting down with a list of my documents and saying that you've got these numbers seven and nine and eleven i'm only going to need for impeachment purposes so i'm not going to list that um well i'm thinking about uh let's say you have uh some commercial dispute and there are multiple projects going on between two companies two projects are not in dispute one is totally in dispute you just happen to have a notation on their job records of one project that the person was in california the one that's not in dispute the person was in california on the day in a meeting yet and the other case they say oh no i was there i heard everything this person said that might be an example of where all right you use the project meeting note from the other project that has nothing to do with the dispute that's a good example to prove you wouldn't have thought to include that document in your disclosures initially all right and uh it wasn't until the guy claimed he wasn't or you know he was at a meeting that it even became pertinent right right so that would be that would be a that would be an example i think that's actually what john is saying is that yeah but i mean if something seems to be relevant to your case you better list it early on whether i wouldn't get cute about whether it's an impeachment document or or not and and withhold it under the theory that oh it's only an impeachment document right dude the thing or person who only becomes relevant at some point in the future right because what the other side is now raised agreed okay so yeah if it falls within the scope of this of discovery and it and it touches upon the claims and the fences of the matter i don't think you can just decide well i'm only going to use that one for an impeachment right even though it gives up the other side's case then yeah you basically you got to be careful but now that's probably right john is that they don't want the truth to the court didn't want the truth to suffer because of somebody not knowing well in advance that they had to use some document that they never anticipated where we went during the middle of trial and videotaped underneath the ceiling in a elementary school to prove that certain painting was there on certain beams that the other side had claimed at trial had never been done and so obviously i couldn't have listed that videotape at the beginning of that case because it wasn't there but it certainly was good for impeachment when the guy couldn't explain why beams had been were painted when he had testified the day before that my client had never done it but that i mean there may be other things like that but uh normally if you had the videotape of the project you were suing over to give your club get recovery for you and identify the video okay uh moving right along uh item number six provide a computation of any category of damages claimed by you will the category of damages be summoned samples lost earnings medical bills all right special damages special damage special damages that are hard out of pocket money yeah that you can uh tie directly to the incident involvement litigation what other kinds of general compensatory candidates all right compensatory are sort of like at least one there are maybe slightly broader than special damages y'all are probably better on damage the story can be both special and in general like pain and suffering for example and then somebody mentioned punitive damages yeah uh what other kind of damages okay for attorney sees i don't know that's damages travel damages so you can do and then you could if you're got a contract dispute what kind of damages could you have expectations yeah quant you can have quantum marrow damages the value provided to the other side and a and a sort of a copled bridge of contract quantum arrow case you can have uh uh consequential damages you know loss of ability to get bonding or a loss of a loan because the person didn't pay you therefore you didn't have no money in your bank account and therefore this whole other project went under uh and you could but basically you're gonna have to list those categories and then it says a computation of any category of damage is claimed by you now if you're the plaintiff and you want to get money should you have an idea of what you're trying to get from the other side yes it's a good idea and how much how much likelihood of getting the case resolved early on if all you can say is damages i want to prove at trial less likely right so if you do your homework on that subject matter you're probably likely to proceed with the litigation more effectively than if you just are namezy pamsy on what your damages are now there's some instances where you can't get a calculation of them but you can certainly get a category such as punitive damages or pain and suffering and you might if there's a metamouth case or something take the maximum recovery under law if there's a limit or something of that nature now it goes on to say in addition include a copy or a description of a category or location of the documents and other evidentiary material not privileged or protected from disclosure on which the computation is based including the materials bearing on the nature and extent of the injuries so if yours if it was a personal injury case what would you provide medical bill medical bills uh earnings you know lost earnings right so basically you're going ahead and you're providing the other side that information that could help them assess the case how many of y'all have out of case settle right after initial disclosures were made i've got a hand back here so it's it's quite possible it could happen if somebody cites a statute maybe it's the ricoh statute and you've really done a good job describing your facts that are supportive of the case that somebody would settle maybe somebody in your preliminary planning report you put down you want to take 45 depositions somebody would want to settle maybe you put the you had instead of just identifying the videotape of what happened you produce it and and uh the other side wants to sell so basically if you have the opportunity it's just this is a sort of a forced mechanism to get yourself prepared to actually litigate the matter okay uh seven attach insurance policies uh any agreement under which any person carrying or on an insurance business may be liable to satisfy all a part of the judgment now this is the plaintiff side we're talking about is basically the exact same thing on the defense side but what kind of document might a plaintiff have that might indicate that they're entitled to get some documents some information from an insurance excuse me recovery from an insurance company well plants might have some insurance but isn't qualified by that they might that the insurer might have to satisfy a judgment yes yes so that wouldn't apply if you have first-party insurance like medical care coverage or something of that nature well that's true and then in construction cases you know one of the things well if you're the general contractor you always try to get your subs to give you their insurance policies right when you are doing the project before you start doing it so if you ever have to sue them for defective construction or for damage you can say i know what your policy is and you can uh have some assurance you can get recovery from that that insurance or if you're about to get sued or have an arbitration against you and you're by the owner and you've got to bring a lawsuit against the subcontractors to recover and you might be an additional insured you might have an additional insured endorsement that actually ensures the plaintiff so that would be an example okay and then finally under eight you have to disclose uh any segregation interest that somebody might have is anybody know what segregation is listen the right to go back against somebody else for your losses right or in this instance if somebody else has already paid a loss like an insurance company they may have a claim to go back after you or or some third party to recover so that would be the typical and most i guess it's the most common circumstance where an insurance company pays and so if the insurance company is already paying this has actually happened where actually it was a bonding company had already paid i'll just make it simple to plane it for the recovery and then the plaintiff brings the lawsuit anyway try to recover again against the defendant but they didn't actually hold the claim because the insurance company had already paid now there might be a deductible or something that allows the insured who has already gotten recovery to recover just the deductible or there might be a requirement that the insurer who has already been paid to actually pursue the lawsuit on behalf of the insurance company under what's that called an insurance receipt or something like that overseas loan receipt that's right so but that type of thing needs to be disclosed early on because otherwise you wouldn't know who the players are in the litigation so on the defense side uh we're basically done here uh but the defendants have to identify other people that might be liable for the same thing or who they might be able to go against in addition to the same type of information that the plaintiff has provided and that the defendant has a counter claim they have to provide the same damage information and everything that the plaintiff has provided against the point so any other uh words for the good of the order before we conclude this litigation fundamentals well done thank you all very much