Collecting Evidence Through Discovery: Evidence Considerations

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Understanding the foundational requirements for the admission of documentary evidence helps you collect evidence in a format that will assist you and your staff in satisfying the evidentiary hurtles raised by objections based upon authenticity and hearsay. When collecting evidence, you have a number of discovery tools available to you that can eliminate the need to call record custodians and authors of documents as witnesses at trial. When utilizing releases or non-party requests for production of documents, you can ask that the custodian or keeper of the records sign a certification satisfying the foundational requirements of authenticity and hearsay.

Ind. Code § 34-43-1-7 provides for such a certification as follows:

Certification of medical records

 Sec. 7. The hospital employee’s certification of the hospital medical records under section 5 of this chapter must:

(1) be signed by the hospital employee with custody of 
 the hospital medical records; and

(2) include:

 (A) the full name of the patient;

(B) the patient’s medical record number;

(C) the number of pages in the hospital medical 
 record; and

(D) a statement in substantially the following form:

“The copies of records for which this certification is made are true and complete reproductions of the original or microfilmed hospital medical records that are housed in __________ (name of hospital). The original records were made in the regular course of business, and it was the regular course of ____________ (name of hospital) to make the records at or near the time of the matter recorded. This certification is given under IC 34-43-1-5 by the custodian of the records instead of the custodian’s personal appearance.”

You may also want to have the records keeper certify the number of pages making up the records to establish completeness. Similar certifications can be used for public records and other business records to avoid having to call in the custodian or records keeper, as these are preliminary questions of fact which may be decided by the court under I.R.E. 104(a),which allows a court to consider matters outside of the record presented to the jury. Under Rule 104(a) you can sometimes establish foundational requirements outside of the presence of the jury. This portion of the Rule provides:

“(a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.” [Emphasis Added].

This means theoretically that the court is free to suspend the Rules of Evidence in making foundational determinations, and could rely on otherwise inadmissible information in assessing whether an item meets the requirements.

Request for Admissions can also be used to force an opposing party to cooperate in providing stipulations to the admissibility of your exhibits. Below is an example of a form that could be used to obtain such admissions through discovery:

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PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSIONS WITH INTERROGATORIES TO DEFENDANT

COMES NOW the Plaintiff, by counsel and propounds the following Set of Requests for Admissions with Interrogatories to the Defendant and requests Defendant to answer, under oath, in accordance with Trial Rules 33 and 36, within thirty (30) days from the date of service.
You are hereby requested to admit the genuineness and truth of the matters set out below within thirty (30) days from the date of service of these requests upon you. You are hereby requested to answer the Interrogatories set forth with these Requests for Admissions, if applicable. You are hereby requested to state an explanation of the reasonable diligence undertaken with respect to each claim of insufficient knowledge if you make any such claims.
The requested admissions are for the purposes of this action only, and the responses must be made pursuant to the provisions of Trial Rule 36, which provides in part:
If objection is made, the reasons therefore shall be stated.

1.The answer shall specifically admit or deny the matter, or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter.

2.A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.

3.An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny or that the inquiry would be unreasonably burdensome.

4.A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request.

DEFINITIONS:

“Defendant” as used herein shall refer to______________________.

“Identify”: When you are asked to “identify” a person or entity in these interrogatories, you give the person’s or entity’s full name, personal address, business address, home phone number and business phone number. As to an entity, you also indicate whether any entity identified is a corporation, partnership or association. When asked to identify an item, you describe the item in sufficient detail so as to allow for a specific and particular motion to produce to be filed.

“Item” as used herein shall refer to any and all documents, reports, letters, treatises, books, articles, witness statements reduced to writing, witness statements on tape recording, writings of any type, photographs, videotapes, computer files even if not reduced to writing, x-rays, medical reports, medical records, medical tests, measurements, drawings, slides, plans or other tangible materials of any kind or nature. It also refers to any and all information stored on, retrievable, or printable from a computer, including but not limited to electronic mail.

“Person” is used herein in its general usage and includes both the singular and plural form of the word. It also specifically refers to an individual, a corporation, a partnership, a limited liability company, an association, other entity organized under the laws of any state, local, or federal agencies. If there is more than one person to whom the interrogatory applies, the word shall be interpreted in its plural form.

“You” and “yours” as used herein refers to the Defendant and any agent or representative.

“Incident/Occurrence” as used herein shall mean the incident that is referred to and is the subject of this litigation as stated in Plaintiff’s pending Complaint for Damages.

FIRST REQUESTS FOR ADMISSIONS WITH INTERROGATORIES

Request for Admission No. 1(a): Admit or deny that Exhibit A attached hereto and incorporated by reference as though set forth in full herein and marked for identification purposes as Exhibit A is a true, accurate and complete duplicate copy of the original curriculum vitae of Dr. John Doe (_____ pages).

RESPONSE:

Request for Admission No. 1(b): Admit or deny that Exhibit A is an authentic copy of the curriculum vitae of Dr. John Doe, M.D.

RESPONSE:

Request for Admission No. 1(c): Admit or deny that Exhibit A is an authentic copy of a record of acts, events, conditions, opinion or diagnosis made at or near the time of the event recorded, from information transmitted by a person with knowledge, kept in the regular course of the regular conducted business activity, where it was the regular practice of that business activity to make such document.

RESPONSE:

Request for Admission No. 1(d): Admit or deny that Dr. John Doe was competent, had sufficient firsthand knowledge and was qualified as an expert or a person with specialized knowledge to render the opinions and reach the conclusions contained in Exhibit A, the curriculum vitae of Dr. John Doe, M.D.

RESPONSE:

Request for Admission No. 1(e): Admit or deny that all foundational and other requirements for admissibility of Exhibit A, the curriculum vitae of Dr. John Doe, M.D. 
(___ pages) for admission into evidence at trial of this matter, have been satisfied.

RESPONSE:

Request for Admission No. 2(a): Admit or deny that Exhibit B attached hereto and incorporated by reference as though set forth in full herein and marked for identification purposes as Exhibit B is a true, accurate and complete duplicate copy of the medical records of Dr. John Doe (___ pages).

RESPONSE:

Request for Admission No. 2(b): Admit or deny that Exhibit B is an authentic copy of the medical records of Dr. John Doe (___ pages).

RESPONSE:

Request for Admission No. 2(c): Admit or deny that Exhibit B, the medical records of Dr. John Doe (___ pages), is an authentic copy of a record of acts, events, conditions, opinion or diagnosis made at or near the time, from information transmitted by a person with knowledge, kept in the regular course of the regular conducted business activity, where it was the regular practice of that business activity to make such document.

RESPONSE:

Request for Admission No. 2(d): Admit or deny that Dr. John Doe was competent, had sufficient firsthand knowledge and was qualified as an expert or a person with specialized knowledge to render the observations, opinions and conclusions contained in Exhibit B.

RESPONSE:

Request for Admission No. 2(e): Admit or deny that all foundational requirements for admissibility of Exhibit B, the medical records of Dr. John Doe, have been satisfied.

RESPONSE:

INTERROGATORY

Interrogatory No. 1:For each of the Requests for Admissions listed above in which your Response was not an unequivocal and full admission, please identify and describe:

(a)The Request for Admission Number;
(b)The factual grounds on which your denial or non-admission is based;
(c)The legal grounds on which your denial or non-admission is based; and
(d)The documents and/or items which support your denial or non-admission.
(e)The names, addresses, and telephone numbers of each person who provided information which you rely upon to make anything other than an unequivocal admission to such request for admission and a recitation of information that each such person provided.
ANSWER:

REQUEST FOR PRODUCTION

Request for Production No. 1: To the extent that any such documents and/or items identified in your Answer to Interrogatory #1 above exist, consider this a Request to Produce said documents and/or items identified in your Answer to Interrogatory #1 listed above pursuant to Trial Rule 34.

RESPONSE:

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It is important to consider these issues well in advance of trial as they can save you considerable time and expense. If your requests for admissions are denied and you prevail at trial, you could recover your attorney fees and expenses devoted to proving these matters which were denied pursuant Ind. T.R. Rule 37.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on September 12, 2013, in Evidence and tagged . Bookmark the permalink. Leave a comment.

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