Responding To Subpoenas: First-Look Agreement PDF

Responding to Subpoenas: First-Look Agreement Luis General 17 Dec 2024 v.2 First Things First: The Law CCP 2016.030. Unless the court orders otherwise, the parties may by written stipulation modify the procedures prov...

Responding to Subpoenas: First-Look Agreement Luis General 17 Dec 2024 v.2 First Things First: The Law CCP 2016.030. Unless the court orders otherwise, the parties may by written stipulation modify the procedures provided by this title for any method of discovery permitted under Section 2019.010. First-Look Agreement: The Basics First-Look Agreement: What Is It? Pre-arranged and ongoing agreement between the parties involved Allows PL to review any medical and other subpoenaed records BEFORE they are produced to DC First-Look Agreement: What Is It? Gives PL Atty the opportunity to: Determine if any privileged, irrelevant, and objectionable information are included in the records Assert any objections as necessary OR redact/remove objectionable information When to Propose or Enter Into an Agreement Before or during discovery phase Better to gauge DC tendencies first, i.e. w/n a “SP issuer” Parties Involved  Directly Involved  FLF  Agreeing party (the DC)  Deposition officer (aka copier/copy service/legal services company)  Indirectly Involved  Third-party deponents  Parties/DCs not part of the agreement Stipulation or Agreement with DC Stipulation/Agreement with DC Stipulation/Agreement with DC Agreement may be made via phone OR in writing If via phone, always reduce the agreement in writing At the very least: email DC to memorialize verbal agreement Better: have DC sign a written agreement Stipulation/Agreement with DC: Contents  Period to Comply:  Days for PL to have its first look: 10 days or more  Specify whether it is calendar or business days  Procedure:  Coordination with Copier  Notification  Compliance  Scope: All subpoenas or specific ones Procedure  Depends on T&Cs of agreement  Typically: 1. DC issues SP 2. Copier obtains records from 3P-deponents 3. Copier produces records to PL Atty 4. PL Atty reviews records within agreed period 5. PL Atty objects/allows production of records to DC  If PL allows: Copier produces docs to DC  If PL objects: Response from DC → M&C Letter → M&C Call → M&C fails → MTQ Procedure  Alternatively: 1. DC issues SP 2. PL Atty serves MC Letter and NOB while invoking First-Look Agreement 3. DC confirms First-Look Agreement 4. Copier obtains records from 3P-deponents 5. Copier produces records to PL Atty 6. PL Atty reviews records within agreed period 7. PL Atty objects/allows production of records to DC  If PL allows: Copier produces docs to DC  If PL objects: M&C Letter → M&C Call → M&C fails → MTQ Counting of Period to Comply Check the exact date we received the records from Copier Look at the file name on DB/GD to determine exact date Once you determine the date of receipt, count the days per T&C  Once you determine the fil Compliance with Agreement If we object:  Objections  Provide the ground for objection  Reason – keep it short and simple  Page numbers  Other relevant details, e.g., date (if the ground is 5+/10+ years)  Privilege Log Compliance with Agreement If we object: Indicate what the disputed records relate to, without disclosing detailed or private information, so DC can assess whether or not those records are appropriately being withheld. Compliance with Agreement If we object:  In identifying the general nature of the condition you claim to be "unrelated to the issues in this litigation,” make reference to the page range and the kind of "unrelated" medical issues which are being addressed.  For example, indicate "Treatment of cardiac issues", or "Treatment of reproductive issues" or "Treatment of dental issues”  Whatever the general nature of the treatment consists of in the records we propose to withhold Compliance with Agreement If we object:  Offering DC nothing more than a subjective conclusion that the records are "unrelated" without providing DC any additional information leaves DC completely unable to assess whether our determination that the records are "unrelated" is reasonable under the circumstances.  BUT let them say this to you. Who Pays for Legal Service Provider?  Generally, the one who proposed the first-look agreement  Ultimately, depends on the agreement Sample 1 Sample 2  Conclusion (Objectives) Objectives and Advantages  Efficiency and economy  Discovery process management  Streamlining procedure  Strategy  Protection of client’s rights  ?¿? QUESTIONS ?¿? THANK YOU! ☺☺☺