Quick Tips, DC Trial, Requesting Images in Litigation, Volume XII, No. 3 (Fall 2012)
This is what I hope will be the first of many “Quick Tips” columns. I intend for each column to discuss a litigation or trial related idea or technique useful to at least some of our readers.
As case related images have become almost exclusively digital, I’ve noticed that getting these digital files from opposing counsel typically involves a multi-step process. Initially, I would propound a Request for Production of Documents that requests, among (many) other things, all photographs. Next, I would typically receive some poor quality black and white copies of property damage or the scene of the subject event (on copy, not photographic, paper). Then I would write opposing counsel asking for the digital files and offering to pay for any incidental costs in producing them. This can be problematic if you did not specifically request the digital image file in your request for production of documents and discovery is closed. To avoid this problem, and simplify this process, I have drafted the following Request that I intend to use in nearly all cases (note that the bolded terms are defined in a “Definitions” section of the actual Requests for Production Documents):1
REQUEST NO. __: All photographs, video footage, audiotapes, recordings, x-rays, diagrams, drawings, surveys and/or other representations of information concerning (a) the scene of the occurrence, (b) the physical condition of the Plaintiff before the occurrence, (c) the physical condition of the Plaintiff after the occurrence, and/or (d) the subject matter of this case. For each photograph that you produce, if it is in a digital format, please burn/copy each file to a disc and mail the disc to Plaintiff’s counsel. If the photographs are not in a digital format, please have reproduction photographs made of the images and send the reproductions to Plaintiff’s counsel with a bill for the reasonable cost for their reproduction. Similarly, please burn/copy any applicable video footage and/or audio recordings to a disc and mail the disc to Plaintiff’s counsel.
Note that under Federal Rule of Civil Procedure 34 (b)(1)(B) the Request “must specify a reasonable manner for...performing the related acts.” Similarly, FRCP 34 (b)(1)(C) states that the request “may specify the form or forms in which electronically stored information is to be produced.” Regarding Superior Court, although SCR-Civil 34 does not specifically address “electronically stored information,” it also states that “[t]he request shall specify a reasonable...manner of...performing the related acts.” SCR-Civil 34(b). Further, it states that “[a] party who produces documents for inspection shall produce them as they are kept in the usual course of business...” Id. These excerpts provide the basis for a solid argument that the images should be produced in digital form. 2
Requests like this one have begun to generate discs with easy to blow-up color images, rather than black and white images on copy paper, from my opponents. Although the Request is somewhat wordy, I would rather err on the side of caution if it increases the odds that I will receive the responsive images.
If you have any ideas that you think would work in this space, please email me at email@example.com. Although I cannot guarantee that your ideas will make it into the column, I’ll certainly appreciate hearing from you.
1The possibility of spoliation bears mentioning. For example, if your client tells you that a vehicle involved in her crash had considerable property damage, you might want to immediately write the adjuster a “spoliation letter” asking that any photographs of the vehicle be preserved or, alternatively, that you be allowed access the Defendant’s vehicle so that you or your agent can photograph it (this would also apply to the Plaintiff’s vehicle if the Defendant’s insurer had control of it).
2 Virginia Supreme Court Rule 4:9 provides authority for this approach, as does Maryland Rule 2-422.