Articles Posted in Discovery

What is it with drillers and spoliation of evidence cases?  First it was Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc. which is a Tennessee leading case on the subject.  And now, we have a new spoliation case with a different drilling company, Griffith Services Drilling, LLC v. Arrow Gas & Oil, Inc.   So, let’s drill down on this issue a bit, shall we? 

Griffith Services Drilling, LLC (Griffith Drilling) and its insurance carrier sued Arrow Gas & Oil, Inc. (Arrow) for $1.2 million in property damage caused by a fire.  On the day of the fire, an Arrow employee, Mr. Burress, delivered fuel to Griffith Drilling.  During the refueling, Burress walked away to converse with some of the Griffith Drilling employees.  Shortly thereafter, a Griffith Drilling employee yelled that fuel was spraying and a fire ignited.  When Burress moved the Arrow truck to get it away from the fire, the fuel nozzle broke off.  The next day, Burress took the broken nozzle to a retailer and traded it in for a new nozzle.  Griffith Drilling was not provided any notice of Arrow’s intent to replace the nozzle. 

After the fire and without notifying Arrow, Grifftih Drilling’s insurance carrier authorized clean up of the site and disposed of all evidence of the fire.  One month after the clean-up was completed, Griffith Drilling sent Arrow a notice of its intent to pursue a claim for the fire damage.  Suit was eventually filed and Arrow counterclaimed for breach of contract as Griffith Drilling had failed to pay for the fuel delivered to the site.   Thereafter, Arrow filed two motions: (1) a motion to dismiss for spoliation of evidence based on Griffith Drilling’s clean up of the site; (2) a motion for summary judgment on the breach of contract counterclaim.  The trial court granted both motions.  Griffith Drilling appealed alleging the trial court erred by granting both motions. 

The trial court granted the motion to dismiss based on Griffith Drilling’s clean up of the site.  Because Arrow had not been given advance notice of the clean-up, the trial court found that Arrow had lost the ability to investigate the cause of the fire.  As such, Arrow had lost its ability to mount a defense and no lesser sanction was appropriate.  The Court of Appeals began its analysis by reviewing Tennessee Rules of Civil Procedure 34 and 37 which authorize a court to impose a sanction for discovery abuses including spoliation of evidence.  The Court of Appeals’ analysis continued with a review of its prior decision in Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc..  Ultimately, the Court of Appeals distinguished Mid-South Drillers finding it significant that both Arrow and Griffith Drilling had destroyed evidence.  Griffith Drilling had cleaned up the site and Arrow disposed of the nozzle.  The nozzle was critical because Griffith argued the nozzle may have been defective which in turn caused the overflow leading to the fire.   Since both parties had destroyed evidence, the Court of Appeals concluded the trial court had abused its discretion in granting Arrow’s motion to dismiss as the sanction was too severe.  The Court of Appeals noted that if only one party had destroyed evidence then perhaps dismissal would have been the appropriate sanction.  Because the trial court’s grant of summary judgment was premised primarily on spoliation of evidence, the Court of Appeals reversed that ruling as well.  

This decision is interesting in that it seems to breath fresh life into some of the language in the 1991 decision of Thurman-Bryant Elec. Supply Co. v. Unisys Corp . In Thurman-Bryant, the court had stated: “[T]he trial judge has discretion to impose sanctions on a party for the destruction or loss of evidence. The severity of the sanctions, however, must necessarily depend upon the circumstances of each case, i.e., was the evidence lost negligently, inadvertently, intentionally, etc.”  In 2008, in the Cincinnati Ins. Co case, the Court of Appeals reasoned that intent was irrelevant. 

In other words, regardless of whether the evidence was destroyed inadvertently or intentionally, the court could dismiss the case or strike an answer if either party had been severely prejudiced in their ability to prosecute or defend the case and a lesser remedy would be inadequate.  Without question, the issue of spoliation of evidence is fact-specific, but it seems to me the inquiry should remain prejudice and not intent.  The Court of Appeals quoting of the Thurman-Bryant decision appears to re-open the door on intent and will likely cause litigants to have to chase down yet another rabbit during discovery.  

So, from a moral standpoint, intent to destroy evidence is very important.  And such might be relevant in a claim for punitive damages.  But in the normal civil case, is key issue is one of prejudice: did the loss of evidence materially affect the ability of the opposing party to bring (or defend) a civil claim?  If the answer is yes, prejudice is present and the appropriate sanction must be entered.

A Florida appellate court has recently restricted largely unfettered discovery from the Facebook account of a personal injury plaintiff who was filing suit because of injuries to her minor son.  She also asserted her own claim for loss of parental consortium. 

Root v. Balfour Beatty Construction LLC, 2014 WL 444005 (Fl. D.C.A. 2nd Feb. 5, 2014)  Defendant served written discovery that sought access to social media accounts. The appellate court quashed an order permitting extensive discovery and suggesting that in camera review may be necessary to protect the privacy rights of the plaintiff. The opinion cites several cases and a recent article about social media discovery.

The Montana Supreme Court has ordered that a trial court may not order a Rule 35 psychological examination of a personal injury plaintiff who has asserted a typical pain and suffering claim.

In Lewis v. 8th Judicial District,  OP 12-0401 (Mont. S. C. Sept. 11, 2012) Lewis brought a claim for damages arising after she hit by a car while crossing the street as a pedestrian.  Lewis did not claim damages for any mental or psychological disorder or injury due to the accident, nor did she claim that a pre-existing mental condition was exacerbated by the accident or assert an independent tort claim for negligent infliction of emotional distress. Rather, she made only a general claim for "emotional pain, suffering and anxiety" associated with her physical injuries from the accident.

Lewis maintained that the motor vehicle/pedestrian accident is solely responsible for her current and continuing issues with pain. However, a physician who examined Lewis on behalf of State Farm questioned whether her chronic pain may be caused or exacerbated by her preexisting mental health issues.

Lewis’ uninsured motorist carrier, State Farm, sought and received a court-ordered Rule 35 psychological examination.  Lewis sought appellate court review of the trial court’s order,  

The Montana Supreme Court held that "constitutionally-based privacy concerns [under the Constitution of the State of Montana] require that Rule 35 examinations be ordered only when the party to be examined has put his or her physical or mental condition at issue, and when there is good cause for the examination."  The court then followed the of the federal courts interpreting a similar provision, saying as follows:

In applying Fed. R. Civ. P. 35, “[m]ost cases in which courts have ordered mental examinations pursuant  to Rule 35(a) involve something more than just a claim of emotional distress.” Turner v.  Imperial Stores, 161 F.R.D. 89, 93 (S.D. Ca. 1995). The majority of federal courts  “recognize that a mental exam is warranted when one or more of the following factors are  present: (1) a tort claim is asserted for intentional or negligent infliction of emotional  distress; (2) an allegation of a specific mental or psychiatric injury or disorder is made; (3) a  claim of unusually severe emotional distress is made; (4) plaintiff intends to offer expert  testimony in support of [a] claim for emotional distress damages; and/or (5) plaintiff concedes that her mental condition is in controversy within the meaning of Rule 35.”  Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 554 (N.D. Ga. 2001).

Under the circumstances set forth above, the court concluded that a Rule 35 psychological examination was not appropriate and ordered the trial court to set aside its order. 


I am in a lawsuit and had to answer interrogatories.  I didn’t tell the truth about some things and the other side found out about it.  Can I get sent to jail for not tellling the truth?

There is a risk of jail or a fine because interrogatories are answered under oath and lying under oath is perjury.  However, I am unaware of any person actually having been jailed for not telling the truth in answers to interrogatories.

A more realistic risk is that the trial judge may sanction you (he or she would have the right to dismiss your case or, if you were sued, strike the answer in the case and enter judgment against you.)   Lesser sanctions would include telling the jury what you did, awarding attorneys fees against you, and other penalties.  Your mistake will also hurt your credibility with the judge and jury.

It is essential that truthful answers be given under oath, whether in response to interrogatories or when giving oral testimony.  Even if criminal penalties are not imposed lies, and even mistakes, can hurt your case.

What burden should be placed on a party seeking a new trial if the losing party discovers that the winning party engaged in deliberate discovery misconduct?  In Duart v. Dep’t of Correction,  No. 18476 (Conn. Jan. 24, 2012), the Connecticut Supreme Court  said  the movant must establish the following:

(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a reasonable probability that the result of the new trial will be different.

A‘ ‘reasonable probability’ ’’ means ‘‘’a probability sufficient to undermine confidence in the ‘outcome’’  or, in other words, that ‘’the favorable evidence could reasonably be taken to put the [whole case in such a different light as to undermine confidence in the verdict.’’"  [Citations omitted.] 
The plaintiff in the case sought a lesser standard, saying that she should only have to prove "that the misconduct substantially interfered with [her] ability fully and fairly to prepare for, and proceed at, trial.’’  The Court rejected that argument, saying that 
Not requiring the movant to prove a different result would invite endless litigation and deplete judicial resources. Given the breadth of discovery in modern trial practice, it is inevitable that the movant could find some fault with the other party’s compliance with broadly phrased discovery requests. If we obliged the nondisclosing party to prove harmlessness every time the moving party claimed that the nondisclosure constituted misconduct, we would impose an insupportable burden on the nonmoving party to disprove amorphous assertions, as in the present case, that the ‘‘entire case would have gone differently . . . .’’ Requiring a showing of a different result serves as a means of differentiating those cases in which the nonmoving party’s alleged misconduct materially affected the resolution of the underlying case—and in which, accordingly, the increased burden and expense is thereby warranted—from those cases in which re-litigation would be a pointless exercise.
It is important to note that the Court never reached the question of whether there was deliberate discovery misconduct by the defendant.  

A New York Appellate Court has ruled in Patterson v. Turner Construction that a defendant in a personal injury case does not have an unfettered right to access the plaintiff’s Facebook account.

Instead, the defendant can seek only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

The appellate court reversed a trial court order which "granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived."

According to Eric Turkewitz, author of the New York Personal Injury Law Blog, this that it trial judges

see fit to grant a request for Facebook or similar records, the judge will be forced to do in camera reviews of potentially voluminous records comprising all manner of notes that might come from Facebook, My Space, private blogs, Twitter,  emails, texts and other places. The digital age has spawned an extraordinary boatload of information that courts will have to sift through when demands are made by overeager lawyers hoping to stumble upon some smoking gun.

And what does that mean?  In Eric’s opinion, that means that trial judges are going to require that there is a "factual predicate" to make the demand,  a showing required by in an opinion by a New York appellate court in McCann v. Harleysville Ins. Co.

This is only fair.  No one – plaintiff or defendant – puts his or her life up for total inspection when involved in a Tennessee personal injury case,  medical malpractice  case, or any other kind of dispute.  People – particularly young people – put lots of information on social media sites (way too much, in my opinion) and there is no reason to give an adverse party the wholesale right to all of that information.

Thanks, Eric, for sharing these cases and your thoughts with us on this important topic.

The Fourth District Court of Appeals for Florida has ruled that a non-settling defendant cannot obtain a court order forcing disclosure of confidential settlements between the plaintiff and settling defendants.

Plaintiffs were involved in an auto accident that was allegedly caused  by tire  failure.   They sued  the car manufacturer,  the  tire manufacturer,  the  car  dealer,  and   Wal-Mart  (the tire dealer and installer).  Three  of  the  defendants  entered  separate confidential  settlement  agreements after a mediation.   Wal-Mart  did not settle and sought discovery of the confidential settlement agreements.  The trial court denied the request, saying that given the fact that joint and several liability had been abolished in Florida the settlement amounts were not relevant.
The Court of Appeals affirmed, saying
Wal-Mart  cannot  show  that  discovery  of  the  settlement amounts  is  necessary  to  determine  entitlement  to  set-off;  it  h a s   not shown  that  the  denial  of  this  discovery  will  eviscerate  its  defense. At trial, Wal-Mart  can ask   the   fact-finder  to  determine  its  percentage  of fault.  It  does  not  need   the   settlement  information  to  show  that  the claims  arise  from  the  same  injury.   The  settlement  information  is  not  admissible or likely to lead to the discovery of admissible information.
This is the correct result.  If confidential settlements are to be permitted at all (and there are sound reasons why they should not be) then a confidential settlement should be, well, confidential.  A non-settling defendant should not be able to trump the terms of the private agreement, especially when the information they would gain has nothing to do with its ability to defend its case.
The case is Wal-Mart Stores, Inc. v. Strachan, No. 4D11-253 (FL. App. 4th Dis. Oct. 12, 2011).


Evan Shaeffer wrote a book called Deposition Practice Tips.  Certain excerpts from the book appear here. 

I want to focus on Section 1.111,  which Evan titled "Can You Wing It At A Deposition?"

Here, in bold print,  is his work:



Can you wing it at a deposition? Undoubtedly, you can. When depositions don’t give you butterflies anymore, it can give you some pleasure to know that you can step into a conference room and conduct a complete deposition barely giving a thought to preparation.

What are the dangers of winging it? While style over substance can get lots of lawyers through depositions, “winging it” is never a good idea. If you are merely going through the motions, which is the whole point of winging it, you are not adding value to the case. It’s not a good way to lay the foundation for trial or settlement.

Before winging your next deposition, here are some questions to ask yourself:

  • What are the goals of the deposition? Are you merely gathering information or can you also get helpful admissions from the witness? How do you plan to achieve your goals?

  • Do you plan to exhaust the witness’ memory on certain issues? Which ones? Why these issues and not others? When you are finished, will the witness really be pinned down, or have you left some doors open for him to wiggle through later?

  • Have you reviewed the pleadings? If not, why not? Have you looked at the discovery responses and documents? Which ones do you plan to use at the deposition, and why?

  • How is the witness going to fit into your plan for trial? Have you even thought about trial? How will the witness support or detract from your legal claims or defenses?

  • How can use the deposition in motions before trial? Have you thought about the ways you’ll use the deposition in other depositions? Have you thought about the ways you’ll use the deposition at trial?

No matter how memorable your deposition style, there’s simply no substitute for thoughtful preparation.

Depositions are the most important part of the pretrial process.  If the deposition is important enough to take it is important enough to spend the time necessary to prepare for it.

It is very easy to say to yourself, "I have taken hundreds of depositions like this one.  I can just drop in, get started, and it will be fine."   And with that level of experience in that type of deposition, you might be able to take a "B" deposition.  But to take an "A" deposition, you need to thoroughly prepare.

And, if you don’t have substantial experience in taking a particular type of deposition, you will not manage a "C" without substantial work.

No matter what  grade you received in your "Litigation Skills" class.




 Plaintiff’s accident reconstructionist (Webb) in an auto defect case was deposed about his proposed testimony.  Thereafter, Webb signed an errata  sheet that changed four of the variables he used to make his calculations.   Among the changes were a change in the angle of the subject vehicle from 22 degrees to 44 degrees and an increase in the closing speed of the vehicle from 68 miles per hour to 78 miles per hour.  He said these changes did not alter his ultimate conclusion  on the change of velocity (delta-v) experienced by the vehicle occupants (35 miles per hour).  The plaintiff did not supplement interrogatory responses concerning the expert’s testimony but simply sent the errata sheet to the defense.

The defense denied receiving the errata sheet.  The defense expert testified that the delta-v was between 55 and 67 miles per hour.  All parties agreed that a crash is not survivable with a delta-v in excess of 50 miles per hour.

At trial the expert said he completed the errata sheet because he realized after his deposition that he had made some mistakes in his analysis.  He did not claim that the court reporter made an errors or that the changes were made to clarify his testimony.

The Mississippi Supreme Court held that the trial judge erred by not excluding the testimony of the expert.  It said as follows:

Even if Hyundai did receive the errata sheet, simply giving the defendant this document did not relieve the plaintiffs of their duties under Mississippi Rule of Civil Procedure 26(f). The purpose of an errata sheet is to correct scrivener’s errors or provide minor clarification; it is not a means of making material, substantive changes to a witness’s testimony. See e.g., Garcia v. Pueblo Country Club, 399 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“A deposition is not a take home examination.”) If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to amend orsupplement the response. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 916 (Miss. 2002). This is the responsibility of the party or parties sponsoring the witness, not the responsibility of the witness.

What about the argument that the changes on the errata sheet did not alter the expert’s opinions – the "no harm no foul" argument?   The Court said as follows:

The plaintiffs argue that Webb’s changes were not material because they did not alter his opinion that, had the car not separated, the occupants would have experienced a delta-v of only thirty-five miles per hour. We disagree. The changes in Webb’s calculations were material changes because they were essential components of the basis for his opinion. When Hyundai attempted to cross-examine Webb about his calculations, Webb referred to his errata from Webb’s testimony that the figures on the errata sheet were important to his calculations. Moreover, when Hyundai’s experts performed crash testing, they used the figures given by Webb in his deposition in an attempt to refute Webb’s testimony. When Webb changed his calculations, the crash test using Webb’s initial calculations lost relevance.

In conclusion, the Court said that "neither these plaintiffs nor any other party litigant may rely on a witness’s notations on a deposition errata sheet as a substitute for formal and timely supplementation."   The Court then reversed a jury verdict for the plaintff and ordered a new trial.

Some may suggest that this opinion is yet another example of a conservative court bending over backwards to help a defendant escape a jury verdict.  I doubt it.  The author of the opinion was Justice Jim Kitchens, a friend of mine for over 20 years.  Justice Kitchens is a former criminal defense and plaintiff’s lawyer and is not the kind of person who would seek out a way to reverse a jury verdict to punish a plaintiff or plaintiff’s lawyer.  I know him to be the kind of person who "calls ’em as he sees them," and he obviously believes that the duty to supplement responses to discovery is one that should be taken seriously.  He – and the entire Court – have sent a clear signal that the duty to supplement applies to all litigants.

The case is Hyundai Motor America v. Applewhite,  No. 2008-CA-01101- SCT (Miss. S. C. 2/10/2011).

Winning Trial Advocacy Tips has an excellent post on how to improve the reading of depositions at trial.

An excerpt:

4. Tab the appropriate pages.  Just like on the radio, you want to prevent the courtroom from filling with “dead air.”  When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away.  Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next.  Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.