Updated Form for Standard Deposition Questions to Records Custodian

In light of some recent traffic to my post on Depositions on Written Questions of Records Custodian, I thought I would post an updated version of the form, complete with the introductory portions.  Note that this form is meant for Texas civil cases - your guess is as good as mine if it works for other states.

-Updated Form for Deposition on Written Questions of Records Custodian
-Form for Witness Fee Invoice

Standard Written Deposition Questions to Records Custodian

Updated - See Below

Every so often (like 99.9% of the time), documents actually do rule the day. Proving up a document's chain of custody (i.e., authenticating it) can be a mess during a live proceeding, especially if they originate from a non-party. Authentication can be especially tough if you've got someone on the other side that's decided to let his or her case stand and fall on the technical components of evidence law--i.e., the other side's case totally sucks.

How do you avoid objections to the authenticity of documents obtained from non-parties? Despite what many may tell you, Business Records Affidavits are not fool-proof. Depositions on Written Questions to non-party "Records Custodians," on the other hand, are about as close to fool-proof as you can get without calling the ghost of Johannes Gutenberg to testify.

Rules 200 and 176 of the Texas Rules of Civil Procedure govern Depositions on Written Questions. What I find likable about these official looking documents is that if you set up your forms correctly, you can send them en masse without actually using your brain.

Using Rules 803(6)-(10) and 902 of the Texas Rules of Evidence, I've tried to develop a standard set of direct examination questions for Records Custodians. You can use, modify, and share these questions by accessing this link or the one at the bottom of this post (just use at your own risk and don't be a jackass if something goes wrong).

Instead of quoting the statute, I've tried to phrase the necessary authenticity questions in a way that's more akin to the way someone other than a 1920s speakeasy patron would ask them. (Who wrote these statutes anyway?) Regardless of how you ask the questions, my experience has been that most Records Custodians are used to getting served with these types of discovery requests and do a fairly good job responding. Note, however, the box-checking and fill-in-the-blank format--I've found those features to be helpful.

Standard Direct Questions for Deposition on Written Questions to Records Custodian

Note - Form has been updated here: http://palsgrafexpress.blogspot.com/2013/01/updated-form-for-deposition-on-written.html  

Witness Interviews for Low-Dollar Cases: Outscoop a Settlement

Fact-determinative cases worth $20,000 or less may be the most difficult cases on the block. It's enough money to get your client mad, but not enough to make an arrogant opponent want to make any real progress. Nonetheless, in the land of the free, we need to respect everyone's access to the courts, no matter how big or small the claim (and sometimes we just get stuck with these cases).

Whether you're on the plaintiff's or the defendant's side, chances are things will move slow enough to give you an opportunity to gather the facts informally, then have a sit-down with the lawyer on the other side and see if something can be worked out before discovery influences the parties' temperment.

Here's my approach:

Step 1. Identify your capstone witnesses. There's usually one, maybe two, third parties that will make or break a case. Find that person early and see if he or she will talk. If this person is good for you, do a video interview. You avoid any lawyer-witness conflict issues and there's absolutely no question about what was said and when. Be sure to ask all the usual precatory stuff: "Are you under duress? Have you taken any medication that would prevent you from understanding my questions and answering them truthfully?" Then do the usual "general-to-specific" line of questioning. The key: capture the witness' story and the witness' demeanor.

Step 2: Identify your ancillary witnesses. These guys usually saw something minor or heard someone say some detail that just adds gravy to the train. I would also include in this category at least one person who knows your capstone witness and can testify to that person's credibility. Depending on their level of sophistication, you can go in-person and interview them with a digital recorder or just send them a list of questions (no more than 10 is a good rule of thumb) with blanks where they can fill in the answers.

Step 3: Go to Uncle Sam. Use your Public Information Acts and Government websites. Get the accident report, the deeds, the appraisal records, and the like. Nowadays, most of the open records requests I've sent come back via email and cost me a whopping $0.00.

Step 4: Try to Negotiate a Peace Treaty. Take what you've got to your opponent and make your case for settlement. Chances are, your opponent will understand that you've taken the case seriously and see something much more persuasive than your stinging letters: a vivid image of what the evidence will actually look like.

Making Non-Party Discovery Work

Here's a short list of tips for ensuring that you don't have to make a routine practice of seeking to hold non-parties in contempt for not responding to discovery requests.

1. Call the non-party beforehand and explain what you are about to do.

Even a monkey could figure out why this is important.

2. Use a law enforcement official to serve the subpoena on normal folks.

In Texas, anyone over 18 that is not a party can serve a subpoena in a civil case. If you're serving an engineer or a doctor, chances are they know what it is and that they're suppose to take it seriously. If you're serving an 22-year-old overnight stocker at a grocery store, they've probably never seen a subpoena before and may very well throw it in the trash if some 18-year-old runner hands it to them. The authority of the "badge" works wonders.

3. Write the document request or deposition notice in a way that tells a normal person what to do.

If you want to the recipient to do the job right, tell him or her step-by-step what to do and explain the process in a way that's conducive to someone who's probably worried about getting sued. Whatever you do, don't just cut-and-paste a form book non-party discovery request--I've seen better command of the English language on a restroom door. I've found using headings like a FAQ webpage works well:

I. Have I been Sued?
II. What Right do You have to Request Information from Me?
III. Will I be Paid for My Time and Effort?
IV. When Do I Need to Respond?
V. How Do I Need to Respond?

You get the idea.

4. Call the non-party after the subpoena is served and arrange for document pick-up or deposition logistics.

Establishing a level of comfort or respect with the witness is crucial for avoiding a courthouse contempt hearing. So is making sure the witness knows where to go, what to bring, and when he or she will be able to pick up the reimbursement check.

Using RFAs to Deal with Less than Forthcoming Lawyers

Experience really is the best teacher. I have a case where opposing counsel routinely responds to discovery requests with baseless objections. It's a real pain trying to get the case moved when the other side won't provide you with the names of company witnesses or documents that supposedly support certain defenses.

I'm hesitant to file a Motion to Compel and seek sanctions at this point in time because there are more pressing matters in the case to address and it's just plain too early to cry foul in front of the judge.

So for now, I'm laying the groundwork for a swift execution through RFAs like these (let's hope):

1. Admit or deny that you have produced all discoverable documents in your possession responsive to Request for Production No. 1.

2. Admit or deny that you have produced all discoverable documents in the possession of any of your agents, affiliates, or persons within your control responsive to Request for Production No. 1.

3. Admit or deny that you have reviewed all relevant internal files in your possession in connection with your identification of potential fact witnesses.

4. Admit or deny that you have disclosed the names of all potential fact witnesses known to you.

5. Admit or deny that you have disclosed the names of all potential fact witnesses that should, in the exercise of due diligence, be known to you.

6. Admit or deny that you are not withholding any document or material that should, under the Rules of Discovery, be produced in response to Request for Production No. 1.

7. Admit or deny that each objection you have made to any disocvery request above is supported by a specific Rule of Procedure and at least one published opinion from a court of record in this State.

8. Admit or deny that you will not attempt to supplement your discovery responses with documents or material that are presently in your possession.

9. Admit or deny that your attorney has read your discovery responses.

10. Admit or deny that you have read your discovery responses.

Now, let's see what happens when 1 month before trial a mountain of supplemental information is produced and new witnesses pop up.