Physical or Mental Examinations, Making and Responding to Requests for Admissions, Elements of Document Requests, Discoverable ESI, Privilege and Document Protection, Document Organization, Indexing, and Inspection.

 

The purpose of a physical or mental examination, generally speaking, is to examine the physical or mental condition of a party if the issue is relevant to the case. Peggy Kerley, Joanne Banker Hames & Paul Sukys, Civil Litigation 11-1 (8th ed. 2020). For example, physical examinations are oftentimes used in personal injury cases where the physical condition of a party is important in establishing the extent of the injuries incurred on the plaintiff and whether the defendant is personally liable. Id. at 11-1a. Other cases in which an examination might take place involve industrial accidents, paternity suits, and cases involving the eligibility of payments under the terms of a disability insurance policy. Id. The law allows for these types of examinations in order to help establish truth within a case. Id. at 11-1b. Allowing these examinations to take place may discourage a plaintiff to file a lawsuit under false or exaggerated claims. Id. Typically, most physical and mental examinations are scheduled and mutually agreed upon by the attorneys for both parties. Id. at 11-2. However, if an agreement cannot be met, then a motion for a compulsory examination will be necessary. Id. Rule 35 of the Federal Rules for Civil Procedure outlines specific conditions, criteria, and contents required within the motion and examiner reports. For example, the examiner's reports must "be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests." Fed. R. Civ. P. 35(b)(2). After the moving papers have been filed with the court, a notice, which must specify the time, place, manner, conditions, scope of the examination, and the name of the person conducting the examination, is given to the opposing party and the examiner. Kerley, Hames & Paul Sukys, Supra, at 11-2. 

A request for admission is a petition filed by one party of a lawsuit to another with the purpose of seeking an admission of the truthfulness within a perceived fact or opinion, or with regards to the genuineness of a document or evidence. Id. at 13-1a. Even though a request for admission is considered a discovery tool, it doesn't really "discover" anything new. Id. Instead, it seeks to solidify the genuineness of evidence that has already been discovered. Id. The process necessary in order to file a request for admission involves reviewing the request with a supervising attorney to make sure all goals are understood, making sure that previous pleadings and important documents are reviewed while compiling the facts, reviewing federal, state, or local court rules, and then finally listing and organizing the admissions that the other party aught to make. Id. The request for admission form itself should contain the necessary elements: title and intro paragraph, definitions and instructions, and the request itself. Id. at 13-2b. The process for responding to a request for admission includes determining whether the target date is reasonable, placing reminders within the calenders of the supervising attorney, and if need be, drafting the response to the request and considering any objections that might be raised to the request. Id. at 13-3. Alternative responses to requests for admission include admission, denial, refusal to admit or deny anything, or objection. Id. at 13-3a. The grounds for objecting to a request involve responses that might violate the attorney–client privilege, the work product privilege, the common interest privilege, the medical privilege, and the confessor–penitent privilege. Id. at 13-3b. 

According to Rule 26 (a) (1) (A) (ii) of the Federal Rules of Civil Procedure, mutual disclosure of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control must be disclosed within 14 days after the initial conference between the parties. Id. at 12-1a. There are also alternative methods for requesting for requesting documents that include the use of depositions, interrogatories, and subpoenas. Id. at 12-1c.  A party can request that the opposing party bring the needed documents to a deposition, which is sometimes served via a subpoena which will contain a specific listing of the books, paper documents, ESI, or tangible things to be produced. Id. Rule 33 (d) of the Federal Rules of Civil Procedure allows a party answering a set of interrogatories to produce business records, including ESI, if the examination of those records will provide the answer to an interrogatory. Id.

It is important to remember that more than one type of discoverable ESI exists today. These different ESI types include ESI based on the configuration of the computer system, ESI based on the nature of the evidence itself, and ESI based on its storage status. Id. at 12-2.

If a party feels that a request for documents needs to objected, they can do so on the bases that the request violates their attorney–client privilege or the work product privilege. Id. at 12-3. Like the other forms of discovery, a request for documents is limited by the attorney–client privilege, which can be used to identify documents, including ESI that should be withheld from the other party on the basis of this privilege. Id. at 12-3a. The work product privilege protects tangible evidence, so it is especially applicable to a request for documents; this privilege prevents the opposing party from obtaining, through discovery, letters, memos, documents, records, ESI, and other tangible items that have been produced in anticipation of litigation or that have been prepared for the trial itself. Id. at 12-3b. 

In order to effectively access and review a client's case files, it is important to organize and index documents in a structured way. Depending on the case or circumstance it may be more effective to organize documents based on chronological events, subjects, anticipation for depositions, or any other way that will allow any document to pulled in an instantaneous matter. Id. at 12-6a. Furthermore, managing index labels for each document - document number, date, author, recipient, document type, etc. - can be a critical role necessary for managing documents. Id. at 12-6b. Evidence within a case that is not a document or ESI - a piece of a equipment or parcel of real estate - may be requested to be inspected. Id. at 12-7. The Federal Rules of procedure outlines a procedure which allows the requesting party, or their representatives, to measure, photograph, or test the property. Id. at 12-7a.