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From the Desk of Dr. Mark Studin
Academy of Chiropractic
Preamble: many of these issues are small, yet each issue is just that… an issue. If you take care of the small issues, then the larger issues often take care of themselves and you can focus on the larger issues… a larger, more profitable practice and more family time.

“Discovery End Deadlines”

Three Guiding Words for Lawyers Practice
 
“They have to…so you have to” Mark Studin 2018

 
Written Discovery Deadline

Whether in a state or federal court, it is important to be mindful of the discovery deadline for a host of reasons.  Among them is this deadline terminates your client’s ability to serve written discovery.  The deadline may not, however, be as simple as it seems.

Consider this situation.  Assume the discovery cut-off is May 1.  A party serves written discovery on March 30. On its face, this might be timely.  The rules governing discovery permit 30 days for the responding party to answer discovery requests mandate that “in order to meet the discovery deadline,” the requesting party must file his discovery requests “at least 30 days before the discovery cutoff.”  Smith v. Principal Cas. Ins. Co., 131 F.R.D. 104, 105 (S.D. Miss. 1990) (holding interrogatories served six (6) days prior to the discovery cut off were untimely); see also Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003) (stating that discovery requests served on the date of discovery cut off would be untimely). In other words, the responding party must be provided at least 30 days to respond.

Whether written discovery served on March 30 complies with a May 1 discovery deadline depends upon how the discovery was in fact served.  If the discovery is hand-delivered on March 30, the 30 day period begins to run on March 31 pursuant to NRCP 6(a) and the discovery is timely.  If, however, the discovery is simply mailed or served electronically via a court filing, not only does the 30 day period begin on March 31, but three days are added for mailing pursuant to NRCP 6(e).  What does this mean?  The responding party gets 33 days to answer instead of the normal 30 but, because in this scenario the responding party would only receive 32 days within which to answer, the discovery is probably untimely and need not be answered.

Do not disregard this calculation as a hyper technical application of the rule.  Calculation of the proper deadlines is crucial as miscalculating a procedural deadline by little as two days has been held by an unpublished order of the Supreme Court of Nevada as sufficient to dismiss an appeal.

 

4:24-1. Time for Completion of Discovery

(a) Originally Named Parties. Except for proceedings under R. 4:11 (depositions before action or pending appeal), and R. 4:22 (request for admissions) and except as otherwise provided by R. 5:5-1(e) (civil family actions), all proceedings referred to in R. 4:10-1 to R. 4:23-4 inclusive shall be completed within the time for each Track as hereafter prescribed counting from the date the first answer is filed or from 90 days after the first defendant is served, whichever occurs first: Track I -- 150 days; Track II -- 300 days; and Tracks III and IV, except as otherwise provided by R. 4:69-4 -- 450 days. If an originally named party has been unable to be timely served, an extension of discovery may be sought pursuant to paragraph (c) of this rule.


 
Discovery end deadlines are guiding rules for every lawyer in the nation, no matter the state and is what lawyers need to follow to prevail in a case. These are the regulatory/caselaw mandates that are “etched in granite” and is why lawyers often pressure doctors to get reports on a timely basis. In a previous consultation I shared with you that lawyers have finite time restraints and if you do not meet them they will share this in their listserv with their colleagues on how you are noncooperative.

 
As a result, it is critical for your office to understand the Discovery End Deadlines on every case you are treating. As a “matter of business,”(AKA part of your infrastructure) with every new case I would call the attorney’s office and ask them what is their discovery and deadline date and note that in a separate notebook or spreadsheet that is NOT part of the patient’s medical record.

 
This will tell the attorney that you understand their needs and you are the “easy button.” In addition, you must ensure that your report is in well prior to that deadline date so the lawyer does not have to run after you. As I said previously, most doctors are only interested in marketing, marketing, marketing; this is the type of marketing that you couldn’t afford to buy. 

It tells the lawyer that you understand the entire process and gives them a level of comfort in working with you. 


Respectfully,



Mark Studin DC, FASBE(C), DAAPM, DAAMLP

Adjunct Associate Professor of Chiropractic, University of Bridgeport, College of Chiropractic
Adjunct Post Graduate Faculty, Cleveland University-Kansas City, College of Chiropractic
Adjunct Professor, Division of Clinical Sciences, Texas Chiropractic College
Educational Presenter, Accreditation Council for Continuing Medical Education Joint Partnership with the State University of New York at Buffalo, School of Medicine and Biomedical Sciences

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