COORDINATING WITH THE US ATTORNEY*S OFFICE
Download
Report
Transcript COORDINATING WITH THE US ATTORNEY*S OFFICE
Clayton Diedrichs
Assistant US Attorney
THE AUSA’S PERSPECTIVE
OUTLINE
Litigation Reports
Communicating
The Claimant Interview
Electronic Discovery
Questions
LITIGATION REPORTS
Minimum Contents
Short Summary of Events
Claims History
Witness List
Draft Answer
Unique Issues
Attachments
Medical Records
Letters to/from Plaintiff’s Counsel
Final Denial/Offer
LITIGATION REPORTS
Factual Summary
Short
statement of events and Plaintiff’s
allegations
The
more information the better, but at least the bare
bones
Medical Chronology
Assessment of Plaintiff’s allegations
Refer
to Important Pages of Medical Records
Hospital unique definitions or abbreviations
LITIGATION REPORTS
Claims History
Dates
Date Claim Accrued
Date Claim Filed
Date Claim Finally Denied/Final Offer
Negotiations
Your Insight
Plaintiff’s counsel
Plaintiff
Witnesses
Case issues
LITIGATION REPORTS
Witness List
Complete
List
Status: Govt Employee; K’r; Resident
Witnesses’ Involvement
Current Location
Can’t
Find them: let us know what was done because
the Court ask
Let
the Witnesses Know We Will Be Calling
FRCP 26(a) - Initial Disclosures at Front End
LITIGATION REPORTS
Draft Answer
We
do use it
General Denials
Judicial Admissions
LITIGATION REPORTS
Unique Issues
Inadvertent
QA Disclosures
Uncommon Privileges
e.g.
the Deliberative Process Privilege
Witness
is going to Iraq in 2 months
Plaintiff is Terminal
Hospital SOP’s or Regulations
LITIGATION REPORTS
Attachments
Medical
Records– This is where the $$ is.
Entire
Record--AUSA will decide what they need
Every page, film, picture, tracing, lab, scan, etc.
PAD; Risk Management; Convenience File; Doctor’s
Personal Files; Each Clinic Involved
CHCS
Every
Scrap of paper:
Appointment logs; birth logs; Surg Logs; etc
LITIGATION REPORTS
Attachments
Correspondence
Offers
and Counter Offers
Final Denial or Final Offer
Contracts
COMMUNICATING
Rhythm of a Case
Hear
from us early
Long
periods with no communications
Hear
from us more than you ever wanted
CLAIMANT INTERVIEW
Rule 408 of Federal Rules of Evidence
Paralegal present
You impeachment testimony waives attorney work
product
Fact memorandum
Make sure Plaintiff’s attorney understands it is not for
purposes of negotiation or settlement
Facts discoverable even in protected documents
Observation & Opinion Memorandum
Not discoverable
ELECTRONIC DISCOVERY
Federal Rules of Civil Procedure
- R 16
- R 26
- R 34
- R 37
- R 45
(ESI)
ESI
Duty of Preservation Falls Entirely on Agency
Counsel
Should
commence when claim is filed
Continuing duty to Preserve
ESI
4 Categories of ESI
Electronic
E-mail,
Communications and Transaction Info
voicemail, instant messaging, etc.
Electronically
Word
processing documents, spreadsheets, calendars
Computer
databases
Technical,
System
created and stored business doc’s
scientific, financial, HR databases
and other internal Information
Metadata,
database logs
ESI
ESI Storage Methods
Online
Storage: hard drives, network servers, PDA
memory chips
Near-Line Storage: connected to computer, e.g.
disks and tape libraries
Offline Storage: Outside the computer network, e.g.
Floppies, Flash Drives, CD, DVD,
back-up tapes
ESI
Take an Inventory of Systems
Systems
that might contain potentially discoverable
information
General function of each such systems
Location of the system
Name of the custodian
Whether there is routine or automatic deletion of
information, and if so, When
ESI
Duties & Obligations
R. 37(f): Preserve potentially relevant evidence
once you reasonably anticipate litigation
When claim is filed
Preserved in “Native” Form
Includes Metadata
Notify Witnesses, IT personnel, & Records Mngmt
Identify & collect routine destruction policies
Take possession of or arrange for preservation of
potentially relevant material
See R/ 26(b)(2)(B): prohibitively expensive or disruptive
ESI
Duties & Obligations (cont)
Ensure
routine destruction practices are modified
to prevent inadvertent destruction
Notify all custodians, IT, & Record Management of
case and their obligation to preserve information
Periodic reminders
Document your actions
May
need to refresh your recollection on the witness
stand
ESI
Litigation Hold Notifications
Directive
to information custodians to preserve
information
Potentially discoverable
Ensure auto-deletion is modified
Preserved in ”Native” format
Sufficiently describe subject matter to be preserved
Have them acknowledge receipt of Lit. Hold Letter
Notify them when need of Hold no longer exists
ESI
Subject to R. 26(a)(1)(B)
Automatic
disclosure
Early in litigation
Privilege
Review
information for applicable privilege
If privileged, must still preserve
ESI
Sanctions – R. 37(f)
Safe
Harbor prevents sanctions when “good faith”
operations of electronic system causes information
to be lost
Limited: doesn’t excuse failure to put in place a
timely Litigation Hold
Spoliation motion still available to Plaintiff
Sanctions allowed under “exceptional
circumstances” even when good faith is shown
QUESTIONS?