What Are Interrogatories, Requests to Produce, and Admissions?

What Are Interrogatories, Requests to Produce, and Admissions?

In civil lawsuits, the parties obtain and exchange information in a process called “discovery”.  This is very different from criminal cases where the police investigate and the prosecutor brings a case based on that evidence and has to disclose it to the defense.  In civil cases, the proponent of an allegation has the obligation to devleop the evidence to prove that allegation and obtains it through the process of discovery.

Discovery in civil disputes takes on two basic forms; what lawyers call “paper discovery”, and the “other stuff”.  Paper discovery actually isn’t paper anymore, but it is the series of requests provided for by our Florida procedural rules that includes interrogatories, requests to produce, and requests for admissions.  The “other stuff” is discovery aside from these requests, such as depositions and inspections of property or equipment.

Interrogatories

Interrogatories are only exchanged between the actual parties in a lawsuit, i.e. plaintiff and defendant.  They essentially are just written questions to the other.  They are limited in number, but Judges usually allow more if there is good reason.  A party’s lawyer will normally draft the answers with the party and they are sworn to under oath.

Requests to Produce

Requests to produce ask for documents or categories of documents, including electronic documents and data.  In addition to being directed at the other party in a suit, in a slightly different form, they can also be used to non-parties so they don’t have to appear at a deposition just to deliver documents.  Unlike interrogatories, these are not limited, but your lawyer will first assess whether there are objections to the requests and what should be produced.  Because these are regularly used in lawsuits, this is why parties can not now just delete data or throw away computers or devices when they are served with a lawsuit or litigation hold notice.

Requests for Admissions

Requests for admissions, like interrogatories, only go between the parties.  They ask a party to admit or deny some specific fact so it doesn’t have to be proven later.  Again, these are to be answered with your attorney as they have far-reaching implications in a case.  Admitting a fact admits it for all purposes, but wrongfully denying a fact carries consequences as well.  Therefore, the best person to assess these requests with you is obviously your attorney.

Timing of Discovery

Sometimes these discovery requests will come with the lawsuit.  In such scenario, you want to be sure to provide those to your attorney and let him or her know that you received those with the suit.  For certain requests, admissions for example, failure to timely respond can actually admit the requests so you don’t want to leave your attorney in the dark and think those requests don’t matter.

There is no right or wrong time to employ these discovery requests either.  Sometimes they are done at the beginning of the suit, sometimes toward the end, sometimes they are used several times in different phases of discovery and sometimes they are even coupled with other discovery mechanisms like depositions.

The Takeaway

The takeaway is that parties in a civil lawsuit use discovery to gather evidence to prove their case and the Florida Rules of Civil Procedure dictate what discovery mechanisms are available.  Therefore, someone who intimately knows those Rules should be in your corner drafting and responding to discovery requests.  Going it along is not a good idea and you know what they say about those who represent themselves. . .

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.thepalmbeachbusinesslawyer.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments and also teaches Judges, lawyers, and paralegals how to perform e-discovery.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at thepalmbeachbusinesslawyer.com.

The Law Office of David Steinfeld –

E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905

What To Do If You Get A Litigation Hold Notice?

Run !  Kidding.  First thing you should do is contact counsel.  A litigation hold notice is something new in Florida.  It basically says, hey, I might sue you so don’t press that delete button on your computer.  The notice can’t say keep everything indefinitely; it has to be useful and as specific as is reasonably possible.  The purpose is to put people and businesses on notice that data, which is very easy to delete or destroy, might be needed in a dispute.  The downside to ignoring such notice can be very severe.

Litigation holds developed in the past decade or so in Federal practice as more businesses transitioned to electronic data from paper.  Because electronic data is capable of destruction or deletion, the legal industry developed a response that fairly placed parties on notice to keep certain data.  That, of course, doesn’t prevent the recipient of the notice from asking the provider to pay for the storage or to even be more specific in terms of what is to be kept.

By their nature, lawsuits are adversarial processes, but in the world of electronic discovery or “e-discovery” as it has come to be known, professional cooperation among lawyers is mandatory.  Thus, responding to a notice and implimenting and managing a litigation hold is best left to qualified and experienced counsel who can navigate your business through the hazards on the road of e-discovery.

But, what happens if you disregard a litigation hold notice or don’t properly impliment a hold?  The other side screams spoliation as it is called and the Judge has to hold a hearing or even series of hearings to evaluate whether spoliation actually occurred, the impact of it, and an appropriate sanction as a response.  Sanctions for intentional spoliation are naturally more severe that those for inadvertent destruction.  Sanctions are not limited and can range from adverse instructions to a jury telling them at the beginning of the case what one party did, to monetary punishment, to making the wrongdoer pay for recovery of the data, to restricting the wrongdoer’s ability to argue and put on evidence, to defaulting the offending party in certain circumstances.  Basically, failure to act on a litigation hold can result in lots of costs and fees and some form of punishment that can all be avoided by speaking to counsel early in the process to assess the notice and define responsive actions.

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments.  He also teaches Judges, lawyers, and paralegals how to perform e-discovery in CLE courses.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was also appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld – E-mail: info@davidsteinfeld.com     Tel: (561) 316-7905.

What Are Your Document and Data Preservation Obligations?

Our world is becoming increasingly digital.  Businesses are keeping more and more information in electronic format, which highlights the question of what must a business operating in Florida keep and what can it delete in the context of a civil lawsuit.

The simple answer of keep everything may not be practical or efficient.  Sure, storage media is cheap, but storing everything also means someone at a law firm has to look through it, which can translate in enormous electronic discovery costs in litigation; we’ll get to that in a minute.

Not long ago, Florida adopted procedural rules in civil cases (contract suits, car accidents, divorces, etc.) that were modeled largely on existing Federal Rules.  Our Florida Rules require that parties perserve relevant data when served with a lawsuit or receive reasonable notice to keep data, whichever is earlier.  So, for example, if your business isn’t suing or being sued, you can freely clean out your hard drive, but you might want to consult with counsel first or archive data just to be sure.  You can still delete data if you are involved in a suit, just not data relevant to that dispute.  If you do, bad things can happen called sanctions for spoliation of evidence.

So then, what’s the easy solution? Have a data management plan and preservation policy and follow it.  If you do, you are in the safe harbor of the Florida Rules.  What do you put in that Plan?  That’s something a Board Certified expert in business litigation with experience with electronic discovery should craft for you.

Now, what is electronic discovery you asked? It is the process of obtaining and processing relevant data by and between parties in a civil lawsuit.  More simply, it’s getting your e-mails and stuff in a lawsuit.  It takes the old process lawyers used of gathering all the documents and exchanging them in a case and brings it into the 21st Century.  It recognizes that businesses and people have a lot of data and it makes efficient use of technology to process that data.  But, someone still has to look through a certain amount of that data and that’s what increases your costs.

In e-discovery as it is called, there are two large costs; the software and the lawyers who use it.  The software cost depends on the vendor and there are about a thousand of them.  Some charge for upload of data and for use.  So, the more data you have to upload and store, the more expensive it is and that’s why storing everything isn’t always the best answer.  The attorneys’ fees naturally depend on the billing arrangement with the law firm, but at the end of the day, someone has to look through some part of that data.  So, the less data there is, the less time it takes, and the less it costs.  Getting the picture?

So, in sum, storing all data for a business isn’t necessarily the best solution as doing so may inadvertently cause future e-discovery expenses to balloon in any lawsuit.  In Florida’s State Courts, businesses now have a legal obligation to preserve electronic data when demanded (with limits) or when sued, whichever comes first.  The intelligent reaction for any business or business owner is to have a proper data management plan and preservation policy for the business in place now to reduce e-discovery costs and exposure to liability later.  For that, look to one of the 240 Board Certified business litigation experts in Florida who can guide you through this developing area of e-discovery.

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments.  He also teaches Judges, lawyers, and paralegals how to perform e-discovery for Everything e-Discovery, LLC eveythinge-discovery.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld –

E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905.

JANUARY 1, 2015 IS COMING – IS YOUR LLC READY?

On January 1, 2015, Florida’s Revised Limited Liability Company Act will apply to ALL LLCs incorporated in and doing business in Florida and it will be the new rule.  The changes from the old LLC Act are dramatic and substantial.  Is your LLC ready?

The old LLC Act was missing a lot of default provisions that previously had to be addressed by operating agreements, if the business had one.  The new Act fills in those gaps and, taken together, operate as a fallback operating agreement for businesses that don’t have one.  But, do you even know what those new provisions are and really want what the Legislature has chosen for your business?

If your company has no operating agreement, the new Act provides that it is deemed member-managed from January 1, 2015.  That may not be the way your company is set up, but it will be on January 1 unless you make a new operating agreement.  Also, members will have certain rights that they previously did not and that you might not want to give them, such as appraisal rights.  Most notably, the new Act sets the value of membership interest as “fair value”, which is a somewhat nebulous concept and requires expensive expert evaluation and testimony to establish.  Maybe your business is better served by a set amount or a formula such as three times EBITA.  Without an operating agreement, you will be stuck with fair value from January 1, 2015.

Your updated or new operating agreement can depart from these new statutory defaults and apply a different set of rules and standards that serve the unique needs of your business.  The cost? Far less to make an operating agreement before January 1, 2015, than to litigate these issues later.  Of course, you can also wait until after January 1, 2015, and hope for the best if you are the gambling type and like to take risks with the business that you built.

The prudent and proper way to approach this situation is to sit down with a qualified expert in business litigation who understands how these issues are litigated and how to structure them to avoid litigation or at least maximize the opportunities for success in future disputes.  Your business is one of the most important elements of your life and livelihood.  If you had a water leak in your house or a problem with your car’s engine, would you just leave it and hope for the best?  Of course not.  So, the optimum time to “repair” your LLC is before the changeover on January 1, 2015.

To schedule an evaluation of your LLC and the preparation of a new operating agreement or other important documents, such as contracts, liability waivers, non-competes, and non-disclosures, to name a few, contact the Law Office of David Steinfeld at (561) 316-7905 or through http://www.thepalmbeachbusinesslawyer.com or http://davidsteinfeld.com

So Your Business Is Moving – What Do You Need To Do?

First off, congratulations.  A move or change is usually positive or results in something positive in business.  So you, the business owner, have decided to change locations or expand to a different one.  Whether your business is sales or service related, you still want to consult with your business lawyer for things like discussing liabilities of transport, storage of assets, and a review of your new lease, preferably before you sign it.

A lease is obviously one of the significant documents that any business owner will sign.  A good time to have counsel review that new, proposed lease is when you are taking an inventory of physical property and exploring your options for transporting your business assets to the new location.  In other words, early in the process and before you move in.

But why?  Why not just sign it, move in, and deal with it later?  That leasing agent looked trustworthy enough . . . what could go wrong, right?!  As the owner of the business, large or small, you have a legal and fiduciary duty to act in and for the best interest of that business.  However, even beyond that, it is just prudent and smart business to avoid problems later by confirming or negotiating issues now.

Not all commercial leases are created equal.  I’ve seen leases generated by shopping center owners that are large nation-wide companies that use the same lease in all fifty States.  Guess what, Florida law is different than some of those, therefore, what is accepted there may be illegal here, like self-help.  One of the biggest issues in Florida is HVAC.  A business without air conditioning can quickly find itself out of business.  Who is responsible for the HVAC at your business location and what does that new lease say about it?

Recently, a client of mine was looking at new commercial space.  The lease made the HVAC the tenant’s responsibility.  I recommended that my client have the HVAC professionally examined and low and behold we find out it is almost 20 years old, hasn’t been maintained, and probably has less than a year’s life left on it.  A new business like that can ill afford a $15,000 or more bill to replace the HVAC in year one; now my client can move in worry free with a new HVAC system from the landlord and even agree to take on the responsibility of maintaining it because the cost of so doing for a new system is very low.  Problem avoided, less to worry about, money saved, and small legal fee expense of business well spent as opposed to larger expenses later.

In sum, the best time to consult with your business lawyer is before you execute any move and lease.  Each situation is unique, but the mind of the business lawyer looks at aspects that the business owner may not consider.  The small expense of the consultation to the business will be worth the peace of mind and protection later.

About the Author

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, and recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network and selected for inclusion in the list of Florida Super Lawyers for 2014.

Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He was also appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions and is a member of the Association of Certified E-Discovery Specialists.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld – E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905.

Or visit us online at http://davidsteinfeld.com

Discovery? What am I, Columbus?!

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My lawyer in my civil lawsuit keeps talking about discovery, but I’m embarrassed to ask what that is.  In criminal cases, I know that the police investigate the crime, the prosecutor charges the defendant, and the trial decides the guilt or innocence.  But what about a civil lawsuit?

In a civil case, it’s the opposite from criminal; the parties have to gather their own evidence through a structured process called “discovery”.  A party files the lawsuit based on a sometimes limited, but good faith belief of the other side’s actions and then undergoes a structured process called discovery to gather the evidence before trial.  The structure is contained in the rules of civil procedure and impacted by the rules of evidence.  Of course, this is a gross oversimplification of the process, but you get the idea.

In civil disputes, each party has the ability in the discovery process to ask the other side for documents and information.  Documents are obtained through Requests to Produce and nowadays can also include electronic records, like e-mails and social media posts.  Other information can be gathered through written questions called Interrogatories or orally through a deposition or both.  Parties can also verify certain facts by asking the other side to admit them in Requests for Admissions.

Sometimes, however, parties outside the lawsuit hold key information.  Discovery may also be obtained from those third-parties or non-parties by way of a deposition or document request without deposition.  But, Interrogatories and Requests for Admissions may only be directed to another party in the lawsuit.  We refer to those involved in a civil suit as a “party” because they can be individuals or business entities.

Discovery takes time to complete because large blocks of time are built into our Florida Rules of Civil Procedure.  For example, after sending a request to another party, you have to wait at least 30 days for a response and sometimes longer depending on the circumstances.  Discovery requests can also sometimes require court action or uncover and lead to other information and evidence that is helpful to claims or yields and supports new claims.  Oftentimes, this is why lawsuits take so long, but that is not always a bad thing because it allows parties to gain some perspective over the dispute as time goes by.

In sum, it is best for any party to get over the embarrassment of not knowing what discovery is and inquire of their attorney as to the purpose and plan of each action in discovery, if the attorney hasn’t already initiated that discussion.

About the Author

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.davidsteinfeld.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO,  named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network, and was named to the 2014 Florida Super Lawyers List.

Additionally, Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation, the Florida Supreme Court Committee on Business and Contract Jury Instructions, and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also involved in the Association of Certified E-Discovery Specialists and is an invited Fellow in the Litigation Counsel of America.  In 2014, Mr. Steinfeld was made a full Professor of Law at Dankook University Law School in South, Korea and regularly instructs on Florida business law and e-discovery.  Informative videos and articles are available for free at http://davidsteinfeld.com.

WHAT EXACTLY IS MEDIATION?

WHAT EXACTLY IS MEDIATION?

This question comes up often because parties in a civil lawsuit in Florida must mediate before they can go to trial, generally speaking.  Mediation is really nothing more than the parties, that is plaintiff and defendant, getting together with their lawyers and a certified mediator, to put their proverbial cards on the table and see if there is another way to resolve their differences.  Mediation is not anyone deciding who is right or who is wrong; the mediator isn’t there to judge and the whole event is confidential, with some limited exceptions.

HOW DOES IT WORK

So how does it work you ask?  Usually one side suggests mediation if it is before the case has been noticed for trial.  If it is noticed, then the Court mandates mediation within a certain time.  The lawyers agree on a mediator, location, and a time and each lawyer has the chance to send a confidential mediation summary to the mediator to give him or her a bird’s eye view of the case as that side sees it.  Unless told to do so, the mediator doesn’t share this summary with the other side.

At the mediation, the parties start together with the mediator, usually in a conference room. The mediator explains that the process is confidential, that he or she doesn’t decide the case, and listens to both sides as an objective, yet skilled observer trying to help the parties meet somewhere in the middle.  Each side then presents their view of the dispute, ordinarily through their lawyers, but the parties themselves can speak and sometimes, depending on the case, it is helpful to get a few things off one’s chest.  After that, the parties go to separate rooms with their attorneys and the mediator meets privately with them.

What the mediator does in speaking privately with each side is try to get that side to see different views of the dispute and to determine where their limits are for settlement.  Different mediators have different styles and your lawyer tries to select or suggest the person that he or she feels is most appropriate for the dispute.  Each side generally pays the mediator in equal shares at the end of the mediation, regardless of the outcome.  Mediators bill by the hour and the parties agree to the rate before the mediation.

WHEN DO YOU MEDIATE

When then do you mediate?  Simple answer – anytime you want and as many times as you want.  Some disputes lend themselves to early mediations; some require more development of the evidence before any meaningful settlement is possible.  The question of when to mediate is a decision to make with your attorney, but unless the Court lets you off the hook, whether to mediate is not normally an option.  The reason why most Judges won’t waive mediation where none has ever occurred is because they know that even mediations that don’t result in a settlement can still set the groundwork for an amicable resolution later.

WHAT IS THE PURPOSE OF MEDIATION

The purpose of mediation is not just to generate a settlement, but to give the parties a chance to explore options that the Court can’t offer and to take control of the outcome of the dispute. Courts really just award money as damages or sometimes property, depending on the case.  However, the parties might accept a swap of assets or really just want a non-compete or some other agreement that means more than money and that a Court can’t usually award on its own.

It is important to recognize that if parties don’t settle their lawsuits, judges or juries make the decisions for them.  If the parties can construct a settlement through mediation that each can live with, they take control of the outcome.

While there are many factors to consider in any mediation, such as the cost of the lawsuit and the evidence, one thing mediation is not is a trial; the mediator doesn’t make any decision.  That right always resides with each party at mediation.

ABOUT THE AUTHOR

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, and recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network and selected for inclusion in the list of Florida SuperLawyers for 2014.

Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  In 2014, the Florida Supreme Court appointed him to its Committee for Standard Jury Instructions in business and contract cases.  He is also involved in the Association of Certified E-Discovery Specialists and is an invited Fellow in the Litigation Counsel of America.

Mr. Steinfeld is a full Professor at Dankook University Law School in South, Korea and regularly instructs on Florida business law and e-discovery.  Informative videos and articles are available for free at http://www.davidsteinfeld.com.

Please visit http://www.davidsteinfeld.com