Articles Posted in Discovery

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:

The March 8, 2010 edition of the Daily Recorder reports that a divided California appellate court has ruled that witness statements recorded or taken in writing by attorneys or their representatives aren’t privileged work product and, therefore, are open to discovery.  The dissenter ruled that the statements were qualified work product, which means that they are undiscoverable unless a court determines that denial of discovery would unduly prejudice the opposing party.  

The case is Coito v. Superior Court (State of California) , 10 C.D.O.S. 2697 (  5th Dis. Cal. Ct. App. March 4, 2010).  Here is the opinion.

Here is a nice statement of the holding taken directly from the opinion:

         One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

          I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.