Minnesota Litigation Evidence Index Template

What is a litigation evidence index, and why build one before the lawsuit?

An evidence index is the company’s own inventory of the documents, electronic records, and objects that bear on a dispute. I suggest building it early, because once a Minnesota lawsuit is underway, your company has a disclosure duty that does not wait for a discovery request. It must give the other side a copy or description of the material it may use to support its claims or defenses.

Minn. R. Civ. P. 26.01(a)(1) provides: “Except as exempted by Rule 26.01(a)(2) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties” a set of initial disclosures. Rule 26.01(a)(2) lists proceedings that are “exempt from disclosures under Rule 26.01(a), (b), and (c)” unless the court orders otherwise. One of those initial disclosures, Rule 26.01(a)(1)(B), is “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 the use would be solely for impeachment.” A company that cannot say what it has, or where it is, cannot make that disclosure.

The rule does not wait for your investigation to finish. Rule 26.01(a)(5) says: “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.” An index started when the dispute first surfaces gives your attorney a disclosure that is accurate on the day it is due. For the steps that follow disclosure, see how discovery works in a Minnesota lawsuit.

What columns should an evidence index template include?

A useful template has one row per item and columns that answer the questions the rules will ask. Those questions are what the item is, who made it, who had it, where the original sits, in what form, and whether it is privileged. A spreadsheet can hold every column below.

Column	What to record	Rule it serves
Item ID	A unique number that never changes	Every later list cites it
Date	Date the document was created or sent	Chronology and exhibits
Type	Contract, email, invoice, text, photo, object	Disclosure “by category”
Description	A neutral one-line description of the item	Disclosure and privilege log
Author and recipients	Who wrote it, who received it	Privilege log; authentication
Custodian	The employee or system that held it	Authentication witness
Original location	The folder, mailbox, drawer, or system	Disclosure “by category and location”; production as kept
Native form	Paper, PDF, native email, spreadsheet, database	Form of production for electronic records
Collected	Date, method, and person who made the copy	Shows the copy matches the original
Production number	The Bates range once produced	Interrogatory answers; exhibit list
Privilege status	None, attorney-client, work product; reason	Privilege log
Exhibit candidate	Expect to offer, may offer, no	Pretrial disclosures

Three columns deserve the most care. The original location column answers the “description by category and location” that Rule 26.01(a)(1)(B) calls for. The native form column matters because, when a request does not name a form, Minn. R. Civ. P. 34.02(c)(5)(B) says “a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form.” The custodian column names the person who can later give “Testimony that a matter is what it is claimed to be” under Minn. R. Evid. 901(b)(1).

I suggest keeping the description column factual, because the same text feeds the privilege log, which must describe withheld items without revealing protected information. Words like “smoking gun” or “proves fraud” can go in a separate notes column that your attorney controls, for reasons explained below.

How does the index protect the company’s right to use its own evidence?

The index protects your company from losing its own evidence at trial. Under Minnesota’s rules, a document your company should have disclosed but did not can be barred from use at a motion, a hearing, or trial.

Minn. R. Civ. P. 37.03(a) says: “If a party fails to provide information or identify a witness as required by Rule 26.01 or 26.05, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” The court may also order expenses, inform the jury of the failure, or impose other sanctions.

The disclosure is also not a one-time event. Rule 26.05(a) requires a party to supplement or correct a disclosure or discovery response “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” That duty does not apply if the information has otherwise been made known to the other parties during the discovery process or in writing. A dated index makes that comparison simple: any row added after the last disclosure is a candidate for supplementation.

A business owner preparing for an ownership dispute once offered to index a messaging-app export covering several years while keeping the complete export intact. I told the owner the index was worth the hour it would take, because the export ran several years. A short index pointing to the dates and messages that matter, with the full export preserved beside it, gives an attorney both speed and a complete record.

Why should the originals stay where the business keeps them?

The index should organize copies, never the originals. Minnesota’s production rule requires your company to produce documents the way it keeps them. When lost electronic records that should have been preserved cause prejudice to another party, Minnesota’s lost-information rule lets the court order measures to cure that prejudice.

Minn. R. Civ. P. 34.02(c)(5)(A) provides: “A party must produce documents as they are kept in the usual course of business at the time of the request and may organize them to correspond to the categories in the request.” That default applies “Unless otherwise stipulated or ordered by the court.” A company that re-files its originals into folders by legal issue loses the record of where each document lived, which is exactly what the production rule looks to.

Lost electronic records carry their own rule. Minn. R. Civ. P. 37.05 applies “If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” On a finding of prejudice to another party, the court “may order measures no greater than necessary to cure the prejudice.” The stronger measures apply “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” The 2018 advisory committee comment adds: “There is no reason, however, that the courts should not, in the exercise of their discretion, follow this rule where there is the failure to preserve other evidence, such as physical evidence or documents in non-electronic form.” The preservation steps themselves are covered in my pages on the legal hold notice and on how lost email can become spoliation.

Copies can stand in for originals within the limits two evidence rules set. Under Minn. R. Evid. 1001(3), for data stored in a computer, “any printout or other output readable by sight, shown to reflect the data accurately,” is an original. Minn. R. Evid. 1003 admits a duplicate “to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” The collected column in the index is where your company records that the copy came from the original, by whom, and when.

How do the custodian and source columns help prove a document is genuine?

Minnesota’s evidence rules make authentication a condition precedent to admissibility: evidence sufficient to support a finding that a document is what your company claims. Many business records must also qualify under the business-records rule. The custodian and source columns identify the witness who can do both.

Minn. R. Evid. 901(a) states: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Two ways to meet it are a witness with knowledge, under Rule 901(b)(1), and “Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances,” under Rule 901(b)(4). The index’s author, recipient, and custodian columns point to the first; its collected and native-form columns help with the second. Where the content of a writing is at issue, the best evidence rule also applies.

For invoices, logs, and other routine records, the business-records exception in Minn. R. Evid. 803(6) requires a foundation shown “by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” The same rule contains a sentence every company building an index should know: “A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.” The evidence index is prepared for litigation. It is a tool for finding and proving the underlying records, and the records themselves are the evidence. For the foundation questions in detail, see admitting business records. The federal version of Rule 803(6) contains no such sentence.

What protects the attorney’s working notes in the index?

An index prepared by or for your attorney in anticipation of litigation is protected trial-preparation material, and the attorney’s impressions in it get the strongest protection. The documents the index lists stay discoverable.

Minn. R. Civ. P. 26.02(d) allows discovery of documents “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Even when that showing is made, “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Separately, under Minn. Stat. § 595.02, subd. 1(b), “An attorney cannot, without the consent of the attorney’s client, be examined as to any communication made by the client to the attorney or the attorney’s advice given thereon in the course of professional duty.” For how that privilege works inside a company, see attorney-client privilege inside a company.

I suggest two practical steps, because the attorney’s notes get the strongest protection and a witness’s use of them can put them at risk. The first is keeping two versions: a plain list of items for disclosure and production, and a working version with issue tags and notes prepared at your attorney’s direction. The second is preparing witnesses from the documents rather than from the annotated index. Minn. R. Evid. 612 reaches a writing a witness uses to refresh memory “before testifying, if the court in its discretion determines it is necessary in the interests of justice.” In that case, “an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon.” The rule’s committee comment leaves open how that rule interacts with work product in civil cases. I suggest keeping the annotated version away from witnesses for that reason.

How does the index feed the privilege log and the withheld-documents statement?

The index’s author, recipient, date, type, and privilege columns produce the privilege log your company must serve when it withholds documents. A complete index lets the privilege log be filtered from it.

Minn. R. Civ. P. 26.02(f)(1) requires a party withholding information as privileged or as trial-preparation material to make the claim expressly. The party must also “describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” The neutral description column is written for exactly that purpose. Minn. R. Civ. P. 34.02(c)(3) adds that “An objection must state whether any responsive materials are being withheld on the basis of that objection,” so the index should also record which request each withheld item answers.

The index also helps after a mistake. If privileged material goes out, the producing party may notify the receiving party under Rule 26.02(f)(2). The rule then provides: “After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.” Whether the privilege survives turns on Minn. R. Evid. 502(b), discussed in the questions below. When the documents are confidential but not privileged, such as pricing or customer data, the tool is a protective order for confidential documents.

How does the evidence index become the trial exhibit list?

Before trial, Minnesota’s rules require each party to identify the exhibits, including summaries, for the evidence it may present at trial other than solely for impeachment. An index with an exhibit-candidate column is already that list in draft.

Minn. R. Civ. P. 26.01(c)(1)(C) requires “an identification of each document or other exhibit, including summaries of other evidence - separately identifying those items the party expects to offer and those it may offer if the need arises.” The other side then has a period, set by Rule 26.01(c)(2) unless the court orders otherwise, to object to admissibility. Under that rule, “An objection not so made - except for one under Minnesota Rule of Evidence 402 or 403 - is waived unless excused by the court for good cause.” Check the current rule text and your scheduling order for the deadlines that apply in your case.

Large volumes of records can be presented as a summary. Minn. R. Evid. 1006 provides: “The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place.” The production-number and location columns tell the other side, and the court, where those originals are.

The same columns answer interrogatories. When an answer can be found in business records and “the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served,” Minn. R. Civ. P. 33.03 lets a party specify the records instead and “afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records.” The rule adds: “A specification shall be in sufficient detail as to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.” The index’s production-number and location columns record where each item is, which is the detail that test looks to. A general reference to the company’s files may not give the detail Rule 33.03 requires.

How Should a Company Start Its Evidence Index?

An evidence index is a simple spreadsheet doing several jobs that Minnesota’s rules assign to parties. It helps your company describe what it may use to support its claims or defenses and where that material is. It also supports producing records as kept, preserving them, logging what you withhold, and naming your exhibits. I suggest starting it when the dispute surfaces, because disclosures rest on the information then reasonably available. I also suggest keeping the originals where they are, the descriptions neutral, and your attorney’s notes in a separate version, because the production rule, the privilege log, and work-product protection each depend on those choices. I handle business disputes in Minnesota courts; my Minnesota litigation practice page describes that work. If your company is organizing records for a dispute, you can email me at aaron@aaronhall.com with a brief description of the situation and your current index. I can tell you which columns it is missing and whether the originals are being kept as the production rule requires.