By Stephen G. Pesarchick, Esq. & Jenna W. Klucsik
The following discusses the use of various oral and written discovery devices in defending trucking cases. It also discusses the use of expert witnesses to defend trucking cases, and unique issues that may arise with respect to experts in this area of litigation. Finally, the following discusses the offer of proof, which is one key issue related to settlement of trucking accident cases that are litigated in federal court.
Because this conference has a national audience, the focus of the following will be on the Federal Rules of Civil Procedure. Even within the federal system, however, the District Courts have their own Local Rules. Therefore, you should always check the Federal Rules and any applicable Local Rules before handling a case in a particular District Court. If you are defending a trucking case in state court, you should also always be familiar with that state’s civil procedure and evidentiary rules, which can differ greatly from the federal rules.
Discovery- The General Rules
Fed. R. Civ. P. 26 sets forth the general provisions regarding discovery in federal court.
Scope of Discovery. Unless the court orders otherwise, parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. See Fed. R. Civ. P. 26(b)(1).
If the party seeking discovery shows good cause, the court can order discovery of any matter that is relevant to the subject matter involved in the action. To be relevant, however, the information need not be admissible at the time of trial, so long as the discovery appears reasonably calculated to lead to the discovery of admissible evidence. See Fed. R. Civ. P. 26(b)(1).
The frequency and extent of use of certain discovery devices may be limited by court order, by the Federal Rules of Civil Procedure, or by the District Court’s Local Rules. See Fed. R. Civ. P. 26(b)(2).
There is a special rule regarding electronically stored information. A party does not need to provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. However, even if this burden is
met in opposition to a motion to compel discovery, or in support of a motion for a protective order, the court may still order discovery if the requesting party shows good cause. See Fed. R. Civ. P. 26(b)(2)(B).
Either on a motion or on its own, the court must limit the frequency or extent of discovery if the court determines that:
• The discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
• The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
• The burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. See Fed. R. Civ. P. 26(b)(2)(C).
A party may not obtain through discovery materials that were prepared in anticipation of litigation or for trial by or for another party, or by or for the other party’s representative. There is, however, an exception, if the material is otherwise discoverable, and the party seeking disclosure proves that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain the substantial equivalent of those materials by other means. If discovery of those materials is ordered, the court must protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories of the party’s attorney or other representative about the litigation. See Fed. R. Civ. P. 26(b)(3)(A)-(B).
A person will always be entitled to a copy of their own previous written or transcribed statement about the action or its subject matter. See Fed. R. Civ. P. 26(b)(3)(C).
If a party withholds information that is otherwise discoverable by claiming that the information is privileged or otherwise protected from discovery, that party must expressly make that claim and describe the nature of the documents, communications or tangible things not produced or disclosed, and do so in a manner that, without revealing information that is itself privileged or protected, enables the other parties to assess the claim. See Fed. R. Civ. P. 26(b)(5)(A).
A party from whom discovery is sought may make a motion for a protective order. The motion must include a certification that the moving party conferred in good faith, or attempted to confer, with the other affected parties to resolve the dispute before involving the court. See Fed. R. Civ. P. 26(c).
Parties are under a continuing obligation to supplement or correct their disclosures or discovery responses in a timely manner if the party learns that, in some material respect, the disclosure or response is incomplete or incorrect, or if the additional or corrective information
has not otherwise been made known to the other parties during the discovery process or in writing. See Fed. R. Civ. P. 26(e).
Rule 26(f) Conference. The general rule is that a party may not seek discovery from any source before they hold a Rule 26(f) conference among themselves. The parties must have this conference “as soon as practicable,” but at least twenty-one (21) days before a scheduling conference is held or a scheduling order is due under Rule 16(b). At this conference, the parties are to establish a proposed discovery plan, which will be submitted to the court. They should also consider the possibility of promptly resolving or settling the case, and discuss preserving discoverable information. See Fed. R. Civ. P. 26(d)(1), (f).
Initial Disclosures. Pursuant to Fed. R. Civ. P. 26(a)(1), parties must make certain initial disclosures without waiting for a discovery demand. These disclosures include the following:
• The name and, if known, the address and telephone number of each individual likely to have discoverable information, along with the subject of that information, that the disclosing party may use to support its claims or defenses, unless it would be used solely for impeachment;
• A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless it would be used solely for impeachment;
• A computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of the injuries suffered.
• Any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment, must be made available for inspection and copying.
Typically, the court will set the deadline for initial disclosures when it issues a scheduling order after the Rule 16(b) conference. If there is no such court order, however, initial disclosures must usually be made at, or within fourteen (14) days after, the parties’ Rule 26(f) conference. If a defendant is served or joined as a party after the Rule 26(f) conference, that party must make its initial disclosures within thirty (30) days after being served or joined, unless a different deadline is set by stipulation or court order.
Rule 26(a)(1)(E) provides: “A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.”
Expert Discovery. Pursuant to Rule 26(a)(2), parties must disclose the identity of any expert that the party intends to have testify at trial.
Unless the parties stipulate or the court orders otherwise, the expert disclosure must be accompanied by a written report if the expert was retained or specially employed to provide expert testimony in the case or is one whose duties as the party’s employee regularly involve giving expert testimony. The written report must be prepared and signed by the expert, and it must contain the following:
• A complete statement of all opinions the witness will express and the basis and reasons for them;
• The facts or data considered by the witness in forming them;
• Any exhibits that will be used to summarize or support them;
• The witness’s qualifications, including a list of all publications authored in the previous 10 years;
• A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
• Statement of the compensation to be paid for the study and testimony in the case.
If the party is not required to provide a written report for the expert, the party’s expert disclosure must state the subject matter on which the expert is expected to present evidence, and a summary of the facts and opinions to which the expert is expected to testify.
The parties must exchange expert disclosure at the time and in the order the court orders. If there is no stipulation or court order, the parties must provide expert disclosure at least ninety (90) days before trial. If the evidence the expert will testify to is intended solely to contradict or rebut evidence on the same subject matter that was identified by another party, the disclosure must be made within thirty (30) days of that other party’s disclosure.
Any expert who has been identified as one who will give testimony at trial may be deposed. If, however, a report is required, the expert can only be deposed after the report has been provided. See Fed. R. Civ. P. 26(a)(4)(A).
An expert who has been retained in anticipation of litigation or to prepare for trial, and who is not expected to be called to testify at trial, may not be deposed unless there is a showing of exceptional circumstances. See Fed. R. Civ. P. 26(a)(4)(D).
Expert disclosure is subject to the continuing obligation to supplement or correct incomplete or incorrect information. If the party was required to disclose the expert’s report, this obligation extends to the information provided in the report and to information provided at the expert’s deposition. See Fed. R. Civ. P. 26(a)(2)(E), (e)(2).
Signing Requirement. Pursuant to Fed. R. Civ. P. 26(g), all disclosure and discovery requests, responses, and objections must be signed by an attorney or by an unrepresented party, and must include the attorney or unrepresented party’s address, e-mail address, and telephone number. This signature is a certification that, to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry:
• The disclosure is complete and correct as of the time it is made; and
• The request, response, or objection is:
Consistent with the Federal Rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
Other parties have no duty to act on a disclosure, request, response, or objection, until it is signed. If the certification violates Rules 26 without substantial justification, the court must impose an appropriate sanction on the signer or the party the signer represents, or both, which may include payment of reasonable expenses, including attorney fees, caused by the violation.
The Discovery Devices
The Federal Rules of Civil Procedure describe at length the various discovery devices and how they are used. The following is a brief list of the various devices, and which rules apply.
Depositions by Oral Examination Fed R. Civ. P. 27, 28, 30, 32
Depositions by Written Questions Fed. R. Civ. P. 27, 28, 31, 32
Interrogatories to Parties Fed. R. Civ. P. 33
Requests to Produce Documents, Fed. R. Civ. P. 34
Electronically Stored Information,
Tangible Things, or to Enter onto Land, for Inspection and Other Purposes
Physical and Mental Examinations Fed. R. Civ. P. 35
Requests for Admission Fed. R. Civ. P. 36
Fed. R. Civ. P. 37 sets forth the rules for making a motion to compel disclosure or discovery. Any such motion must include a certification that the moving party conferred in good faith, or attempted to confer, with the other party before seeking the court’s involvement. See Fed. R. Civ. P. 37(a)(1).
Rule 37 also sets forth the sanctions for failing to comply with a court order regarding discovery, and for failing to respond appropriately to the various discovery devices. Note that in most instances, the court may (and in some instances, must) sanction the disobedient party or its attorney, or both, by ordering them to pay the reasonable expenses, including attorney fees, caused by their failure, unless the failure was substantially justified, or other circumstances make an award of expenses unjust. Other potential sanctions include:
• Directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
• Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
• Striking pleadings in whole or in part;
• Staying further proceedings until the order is obeyed;
• Dismissing the action or proceeding in whole or in part; or
• Rendering a default judgment against the disobedient party.
See Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi). If a party fails to comply with a court order regarding discovery, the court may also treat this as contempt of court, unless it was an order to submit to a physical or mental examination. See Fed. R. Civ. P. 37(b)(2)(A)(vii).
Potential Discovery Issues in Trucking Defense Cases
Securing the Vehicle’s Electronic Components. After the accident, various components of the vehicle must be secured and preserved: the black box (“ECM”), the collision warning system (“VORAD”), and the GPS system. Chain of custody is essential. If possible, the removal of these components should be videotaped. The components should then be stored and locked in an area where no one has access. The information should be downloaded with all parties present and pursuant to an agreed-upon protocol.
Preserving Records. Unlike most other industries, the trucking industry has regulations that control what records must be maintained and for how long. Pursuant to 49 C.F.R. § 395.8, every motor carrier must require its drivers to record his or her duty status for each 24 hour period. The different categories of duty status are off duty, sleeper berth (if applicable), driving, and on-duty not driving. The information that must be recorded includes, for example, the total miles driven that day, the starting time, and the total hours. The motor carrier, however, only has to maintain records of duty status and the supporting documentation for six (6) months from
the date of receipt. This means that by the time the plaintiff sues the case, and you become involved, the trucking company may already have disposed of duty status records.
If the client has not already disposed of the records when you become involved, urge the client to impose a “litigation hold” to avoid any potential spoliation claims. Once a party has notice that the evidence is relevant to litigation, or when the party should have known that the evidence may be relevant to future litigation, a party has a duty to preserve evidence. See Zubulake v. UBS Warburg LLC, 220 FRD 212, 216 (SDNY 2003). If a party had a duty to preserve evidence, and failed to, that party may be subject to sanctions for spoliation. The penalties for spoliation of evidence differ depending on the circumstances of the loss or destruction. In the worst cases, the court is empowered to strike a party’s pleading. In less serious cases, the court may instruct the jury that it can infer that the lost or destroyed evidence would have been unfavorable to the spoliating party. In some states, there is even an independent cause of action for spoliation of evidence, which allows a plaintiff to recover damages against the person who lost or destroyed the evidence if that loss or destruction impaired the plaintiff’s rights against a third-party tortfeasor.
Preparing Your Driver to Testify. One of the most important parts of discovery in a trucking accident case will be the driver’s deposition. You should be prepared to spend the necessary time with the driver before the deposition, to prepare him or her for what to expect at the deposition. The driver should be courteous and professional. The driver should also be prepared to testify regarding the typical lines of inquiry at such depositions: his or her job duties, the driver training he or she had, his or her hiring process, defensive driving techniques, relevant regulations and policies from the company safety manual, the police report, any internal company investigation that occurred, and the accident itself. Both attorney and driver should remember that the deposition will likely be videotaped, and may be played for the jury at trial.
Obtaining Plaintiff’s Medical Records. One of the most critical steps in the discovery process when defending a trucking accident case it to obtain authorizations and use them to obtain copies of the plaintiff’s medical records. Records regarding pre-accident treatment may also be relevant, if the plaintiff had a pre-existing injury. You may also wish to have the plaintiff examined by an independent medical examiner.
Admissibility of Expert Testimony
Fed. R. Evid. 702 governs testimony by expert witnesses. This rule provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court set forth the prevailing standard for the admissibility of scientific evidence in federal courts. A majority of states also apply the Daubert standard.
Under this rule, the trial court must ensure that any scientific testimony or evidence is both relevant and reliable. Daubert, 509 U.S. at 589. Specifically, the court must determine whether a proposed expert “is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509 U.S. at 592. In Daubert, the Supreme Court set forth a list of non-exhaustive factors for the trial court to consider when making the reliability assessment:
(1) whether the theory or technique can be, and has been tested;
(2) whether the theory or technique has been subjected to peer review and publication;
(3) in the case of a particular scientific technique, the known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation; and
(4) general acceptance by the relevant scientific community.
Daubert, 509 U.S. at 593-94. The Supreme Court intended the Daubert analysis to be “a flexible one.” Daubert, 509 U.S. at 594. The “overarching subject” of this analysis “is the scientific validity – and thus the evidentiary relevance and reliability – of the principles that underlie a proposed submission.” Daubert, 509 U.S. at 594-95.
In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court examined how the Daubert standard applies to the testimony of experts who are not scientists. The court held that the general holding of Daubert, which established a “gatekeeping” obligation on the part of the trial judge, also applied to testimony based on technical and other specialized knowledge. The court in Kumho Tire also clearly stated that the list of factors set forth in Daubert “was meant to be helpful, not definitive,” and that whether a particular factor applies depends upon the circumstances of the particular case. Kumho Tire, 526 U.S. at 151. The court described the “gatekeeping” function set forth in Daubert as follows:
The objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. . . . [W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
Kumho Tire, 526 U.S. at 152. A trial court’s determination whether to admit or exclude expert testimony is reviewed by an appellate court using the deferential “abuse of discretion” standard. Kumho Tire, 526 U.S. at 152.
Using Experts in a Trucking Defense Case
A variety of experts may be useful in helping you defend the liability and damages components of a trucking case.
Defending the liability component of a plaintiff’s case may require you to consult and/or retain a trucking safety expert, a truck mechanic, a biomechanical expert, and/or an accident reconstructionist.
Ideally, a trucking safety expert will have behind-the-wheel truck driving experience, as well as a thorough knowledge of the applicable state and federal regulations. Your experts should be very familiar with the Federal Motor Carrier Safety Regulations, which are found in Title 49 of the Code of Federal Regulations.
The case law suggests that there are a number of important issues to keep in mind when consulting and/or retaining liability experts in a trucking case.
First, your witness must be qualified as an expert. In Chisdock v. Monk, 2011 U.S. Dist. LEXIS 145004 (M. Dist. Pa. 2011), the plaintiff was injured in an accident with a tractor-trailer. The plaintiffs made a motion in limineto exclude the testimony of the defendants’ accident reconstructionists. One of the plaintiffs’ arguments was that the experts were mechanical engineers, who proposed to offer opinions on trucking safety without having specialized employment or education experience in trucking. The first had a bachelor’s degree in mechanical engineering, was a registered Professional Engineer, had obtained Accredited Accident Reconstruction status, and had completed relevant continuing education, including in the area of traffic accident investigation and reconstruction, and commercial vehicle crash investigation. The second expert had a bachelor’s degree in mechanical engineering and an M.B.A., was experienced in accident reconstruction and had reconstructed accidents involving commercial vehicles, was an accredited accident reconstructionist and a registered professional engineer, and belonged to the Society of Automotive Engineers and the National Society of Professional Engineers. The trial court held that both witnesses were qualified as experts in accident reconstruction. To the extent the plaintiffs argued that the witnesses were not well-versed in tractor trailer safety, they could cross-examine the experts on their qualifications and argue that issue to the jury.
Second, although your witness may qualify as an expert in one area, he or she may not be competent to offer an opinion in another area. For example, although your expert may be qualified in the area of trucking safety, he might not be qualified in accident reconstruction. Frederick v. Swift Transportation Co., Inc., 616 F.3d 1074 (10th Cir. 2010), involved a collision between two tractor-trailers at a rest stop, and the subsequent personal injury action brought by the occupants of one of the tractor-trailers. After a trial, the plaintiffs were awarded approximately $15 million, after the reduction for comparative fault. Before trial, the trial court had granted, in part, the plaintiffs’ motion to strike the proposed testimony of Robert Reed, the defendant’s designated expert on trucking safety and regulatory compliance. Specifically, the trial court held that a turning study conducted at the scene of the accident and a perception study showing what a driver could have seen on the night of the accident, fell outside the scope of Reed’s expert designation. The 10th Circuit held that the trial court did not abuse its discretion in excluding these portions of Reed’s testimony. The court in Frederick stated:
. . . Reed’s proposed studies feature Reed behind the wheel of a tractor-trailer substantially similar to those involved in the accident and doing actions substantially similar to those that [the defendant’s] driver and the driver of the Yellow tractor-trailer did, or attempted to do, leading up to the collision. These studies clearly go beyond mere trucking safety or regulatory compliance and into the realm of accident reconstruction, an area beyond Reed’s expert designation.
In another example, if you have a vehicle fire case, your expert may be qualified to opine regarding the origin of the fire, but not its cause. Ross v. Ford Motor Co., 2003 U.S. Dist. LEXIS 27790 (D. Neb. 2003), was a products liability action that arose out of a vehicle fire that damaged the plaintiff’s property. The plaintiff sought to have the testimony of the defendant’s proposed cause and origin expert, Ray C. Davis, excluded. The court determined that even though Mr. Davis, a licensed private detective, did not have degrees in engineering or investigation, he had significant experience and training in the areas of vehicle and structural fire loss. The court held that Mr. Davis was qualified to testify regarding automobile electrical systems and their role, if any, in causing or contributing to vehicle or structural fires. He was not, however, permitted to opine regarding motor vehicle defects because he was not an expert in that area.
Third, the expert’s testimony must be reliable under Fed. R. Evid. 702 and the Daubert analysis. Proctor v. Wesco Contracting, Inc., 2003 U.S. Dist. LEXIS 27594 (N. Dist. Tex. 2003), involved a truck collision. The plaintiffs tendered the testimony of an accident reconstruction expert regarding how the accident occurred and wished to present an animation of the evasive maneuvers that could have been taken to avoid the accident. The expert intended to present a Power Point presentation to give several scenarios that the expert would contend happened or could have happened. The expert based his presentation on facts from the police accident report, photographs of the vehicles, photographs of the accident scene, and witness statements. He did not, however, perform any measurements, and he did not explain a mathematical or scientific basis for his conclusions. He also conceded that this representation may not be to scale and that the frames that indicated lapsed time were not based on time/distance calculations. The court held that the expert’s testimony and Power Point presentation were not based upon sufficient reliable data to be admissible under the Federal Rules and under Daubert. This problem was not cured by the plaintiffs’ argument that the expert could explain that his presentation was not “time or speed relevant” and that it was limited to explaining “the position of the vehicles and the sequence of the collision.” These explanations would not be sufficient to assure that the jury would not be confused or misled, particularly in light of the fact that the expert’s expertise was in accident reconstruction, which is “a field based upon the application of mathematical and scientific principles to data collected from the scene of an accident.”
Please note, however, that the fact that the expert did not actually visit the scene of the accident, and relied on photographs and interviews instead, is not automatically grounds for precluding the opinions as unreliable. The other party can explore the extent of the expert’s research into the accident on cross-examination. See Chisdock, supra.
Fourth, the expert’s testimony must be supported by the record and not based upon speculation. In Swanson v. Nims, 2012 U.S. Dist. LEXIS 25299 (N. Dist. Ind. 2012), the plaintiff was injured when his car was struck by the defendants’ tractor-trailer as the plaintiff pulled onto the road from a driveway. The defendants moved to preclude certain opinions of the plaintiff’s experts in accident reconstruction and transportation safety. One of the issues was
whether the plaintiff’s transportation safety expert was qualified to offer opinions related to “medical fatigue.” The expert had concluded that the tractor-trailer driver was probably fatigued and that his fatigue probably contributed to the accident. The court, however, excluded this opinion. Although the expert had training in driver fatigue and had taught courses on it, his conclusion that the driver was fatigued at the time of the accident was “made solely on the basis of his review of [the driver’s] logs and the fact that the accident occurred.” This was an insufficient basis for the expert’s opinion.
With respect to damages, your defense may require you to consult and/or offer expert testimony from a physician with an appropriate specialty, who has reviewed the plaintiff’s medical records, and possibly also examined the plaintiff. You may also need to consult and/or offer testimony from an expert in medical rehabilitation, to assess the care the plaintiff may need in the future; an expert in vocational rehabilitation, to assess whether and how the plaintiff will be able to work in the future; and an economist, who will associate monetary amounts with the plaintiff’s future medical needs and/or diminished or lost ability to work.
The Federal Rules of Civil Procedure permit a defendant to make an “offer of judgment” to a plaintiff. Pursuant to Fed. R. Civ. P. 68, at least fourteen (14) days before trial is scheduled to begin, a defendant may serve an offer of judgment on the plaintiff. The plaintiff has fourteen (14) days to serve written notice of acceptance of the offer, at which time the offer, notice of acceptance, and proof of service is filed, and the clerk enters judgment. If, however, the plaintiff does not accept the offer, it is considered withdrawn. If the plaintiff subsequently obtains a judgment that is not more favorable than the unaccepted offer, the plaintiff must pay the costs that were incurred after the offer was made.
The successful defense of a trucking case requires a thorough knowledge of the relevant discovery rules, and how and when the different discovery devices can and should be used. As set forth above, one of the most essential components of this discovery process is the selection and disclosure of appropriate experts, who are qualified to provide evidence and testimony that will help you defend your client.