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Articles Posted in Discovery

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.

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.

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.] 

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."

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

 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.

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.

All lawyers know that judges don’t like discovery disputes, and some lawyers take advantage of that by violating the rules at depositions.

United States Magistrate Peggy A. Leen entered this Order when confronted with lawyers who ignored the rules.  An excerpt:

The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:

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