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In soccer, a player is cautioned and shown the yellow card if he commits any of seven offenses. In personal-injury discovery, yellow card behavior includes: noticing a deposition to secure records outside the scope of standard disclosure and production and then not conducting the deposition; issuing a subpoena duces tecum for non-hospital records to be delivered to court; requesting eleventh-hour depositions and expert disclosures; noticing depositions without first inquiring about the availability of opposing counsel and the deponent; and objecting to any and all requests for additional disclosure and production. ‘UNINTENDED’ DEPOSITIONS What, you may ask, is an “unintended” deposition? Some firms attempt to secure medical and employment records beyond the scope of standard disclosure and production by noticing a deposition of the “records keeper,” and accompanying it with a subpoena duces tecum. Counsel then contacts the record keeper’s officer and says that an appearance at the deposition isn’t necessary if the records are instead forwarded to the subpoenaing attorney. This is a flagrant abuse of process. Although the standard disclosure and production provides that a plaintiff may produce a medical report or, if there is no medical report, medical records, some firms, after receiving the medical report, pursue medical notes, not through a request for additional discovery, but through this method of “fake” deposition. If the defendant wishes to review the medical records, this may be accomplished via a “real” deposition. Issuing a subpoena duces tecum without intending to depose a deponent merits a yellow card violation. Insist on a deposition, where the records keeper reads into the record favorable language in the medical records and sometimes may even testify about the plaintiff’s cooperation or distress. If the records keeper is a treating physician, there may be favorable testimony about treatment and causation. NEW RULES OF PRACTICE? Some firms have taken it upon themselves to create their own Rules of Practice. They subpoena non-hospital medical records and employment records to be held by the Clerk’s Office. The subpoena duces tecum usually names “keeper of the records,” with the pretext that, at trial, the “keeper” is going to testify. Unfortunately, this procedure does not exist in the Rules of Practice or the Connecticut General Statutes. C.G.S. � 4-104 permits hospital records to be subpoenaed to court and retained by the Clerk’s Office. There are no similar procedures for other medical records or employment records, which are protected by C.G.S. � 52-146o and � 31-128f. THE ELEVENTH HOUR The trend toward noticing eleventh-hour depositions and filing last minute expert disclosures is growing. Depositions should be scheduled at least one to two months in advance. Although exigent circumstances do arise, “exigent” does not mean customary. It is manifestly unfair to consistently notice depositions at the eleventh hour and disrupt the opposing lawyer’s practice. Such misconduct does a disservice to those attorneys who prepare in a timely manner. If the defendant attempts to schedule a last minute medical examination of the plaintiff, and, thereafter, files expert disclosure, plaintiff’s counsel has a reasonably strong argument if the plaintiff has filed expert disclosure pursuant to P.B. � 13-4 a year or more earlier. It may seem like common courtesy and simple civility, but some attorneys don’t check with opposing counsel to ask about availability. Canceling a noticed deposition due to previously scheduled depositions, scheduled pretrials, trials and commitments isn’t uncommon. Subsequently, the courts become involved in motions to compel depositions. Of course, a simple inquiry of availability by the noticing party would obviate the need for court involvement. ENDLESS OBJECTIONS Some attorneys object to nearly every request for supplemental interrogatories and production. P.B. � 13-6 through � 13-10 provide only for limited unobjectionable discovery. The limited “non-objectionable” discovery is completely inadequate for wrongful-death suits. Defendants seek radiological films and medical notes. Plaintiffs need discovery about video surveillance, which can be manipulated. In motor-vehicle suits, isn’t the “non-objectionable” discovery inadequate to disclose drug and alcohol use by the defendant operator? In car-versus-truck collisions, isn’t “non-objectionable” discovery inadequate to disclose the trucker’s transportation and travel log information? Case law and justice suggest that a party must demonstrate no more than a minimal level of “inadequacy” or “inappropriateness” of non-objectionable interrogatories or production to obtain supplemental disclosure. Endless objections to, or denials of, such pretrial disclosures, call for the yellow card. From the perspective of the “fourth official,” much can be done to improve the fairness of the judicial system. Show the yellow card when someone infringes the rules of legal discovery. James O. Gaston is former chair of the Litigation Section of the Connecticut Bar Association and practices law in Bridgeport, Conn.

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