Collecting evidence in litigation is critical to building a strong case, but it can be tricky – especially when opposing counsel raises objections. When subpoenaing records from a third-party witness, disputes often arise over the scope of the request, which leads to conflicts between the need for a thorough record and the rights of parties and the witness. One effective solution is the First Look Agreement, which provides a structured process for reviewing and redacting out-of-scope information while also ensuring that relevant evidence is accessible.
For instance, say that you are Defense counsel in a personal injury matter, and you subpoena the Plaintiff’s medical records to determine if their issues stem from the incident at issue, or from some pre-existing condition. Plaintiff’s counsel objects, stating that your document request is overbroad and that the records should be limited only to the body parts identified in the Complaint. However, the medical provider will not review and redact the unrelated body parts because to do so would be overly burdensome. How do you reconcile the witness’ rights with opposing counsel’s objections and your need to see the Plaintiff’s records?
One way to do this would be to enter into a First Look Agreement. In a First Look Agreement, the parties agree to have the Deposition Officer release the records to opposing counsel first. Opposing counsel will then have a specified amount of time to provide the redacted records and a privilege log. If you don’t trust opposing counsel to act in good faith, you can outsource this review process to a managed review team instead.
Whether your First Look Agreement takes the form of an email between counsel, or a more formal stipulation-style agreement, it’s important that you clearly spell out the provisions of the agreement to avoid misunderstandings down the line.
Scope: You want to very clearly specify date ranges and specific items that are to be redacted. For instance, in our medical records example you may agree that records older than 10 years prior to the incident, and not related to neck, back, and shoulders should be redacted.
Timing: Always specify exactly when opposing counsel or the managed review team must provide the redacted records and privilege log and be sure to keep upcoming hearings or depositions in mind. For instance, if you need to review the production in advance of an expert deposition or upcoming mediation, then you want to set your deadline early enough that you have time to conduct that review. Additionally, you want to keep your Motion to Compel deadline in mind. You only have 60 days after completion of the record to file a Motion to Compel against the witness, and that deadline begins to toll whether you have access to the records or not.
Production: One aspect that many fail to consider is who gets the redacted records. Will opposing counsel release the redacted records and privilege log to all counsel directly, or do you want them to provide these to the Deposition Officer to maintain the record and disseminate the redacted records to all other counsel in the matter? Specifying this up front will save confusion and misunderstandings later in the process.
Notify the Deposition Officer: By its nature, the First Look Agreement provides specific responsibilities that your Deposition Officer will be responsible for, so it’s important to send a copy to them. If your Agreement confers more responsibility than Bates labeling and producing the records to a specific person, then it’s a good idea to send a draft to the Deposition Officer before the Agreement is finalized so that any questions or concerns from their perspective can be addressed.
Navigating discovery disputes requires consideration of the rights of all parties involved. A well-structured First Look Agreement can help resolve conflicts before they happen by clearly defining the scope of the production, deadlines for all parties, and the process for disseminating the records. Proactively considering and addressing potential challenges will ensure that everyone involved, including your Deposition officer, understands their responsibilities and will streamline your evidence collection efforts.
How Array Can Help
Array’s experts specialize in efficiently collecting and disseminating records, ensuring compliance with First Look Agreements and other discovery requirements. Our team verifies locations, serves subpoenas, and securely delivers records—Bates labeled and ready for review—so you can focus on case strategy.
If your case requires a structured approach to subpoenaed records, Array ensures timely production and seamless coordination, helping you navigate the complexities of third-party document requests with confidence.
Sheri Webb, Assistant Director, Subpoena Operations
Sheri brings 27 years of legal experience to her role leading California Subpoena Operations at Array. She began her career in Intellectual Property and Corporate Law before spending over a decade as a Legal Secretary and Paralegal specializing in complex civil litigation. With a deep understanding of legal procedures and a passion for supporting legal professionals, Sheri ensures seamless subpoena operations while providing expert guidance to clients navigating complex record requests. A dedicated industry leader, she has also served on the Board of Directors for the California Alliance of Paralegal Associations and the Orange County Paralegal Association.
