The Daily

The Importance Of Fully Litigating Discovery Responses

San Diego County is appealing an $85 million verdict obtained after it with-held discovery from the plaintiff and was sanctioned for it by the judge.

Just before trial, lawyers for the family said that the county had acted improperly by not turning over key evidence, including a training video on how to apply restraints that all deputies have to see. They also said results of tests deputies must take after viewing the video to determine how well they understood it were not provided.

Too often, lawyers accept discovery answers from the other side assuming that they are accurate and complete. That may have been an acceptable practice in the old days but not anymore. In order to win one case, even institutional defendants like police forces, hospitals, and multi-national companies demonstrate a willingness to either defraud or turn a blind eye to false and misleading discovery answers. Used to be, their lawyers could be trusted to make sure that the answers would be forthright (in order to avoid embarrassment in front of the judge). That calculation is no longer possible as law firms seem increasingly willing to put aside ethics to win.

As a result, your lawyer needs to be prepared to litigate each and every important discovery answer from the other side. When that happens, and the judge becomes concerned, it can affect the case in important ways that appeal very favorably to the jury. As explained in the story on this San Diego case,

The disclosures led U.S. District Court Marilyn Huff to conclude the county had violated its legal obligation — known as discovery — to turn over such materials. Throughout the trial she advised the jurors of these violations, and she said because of them jurors could distrust the county’s version of events on how deputies were trained and on Phounsy’s drug use. Those were two critical elements in the lawsuit.

In motions for a new trial, lawyers for the county said those instructions prejudiced their case. They argued that when Huff told jurors four times about the violations it was excessive and tilted the case against the county.

I posted about some of my experiences litigating discovery disputes when the defense concealed evidence in this post from March of this year.

Hospital Medication Errors Can Be Fatal (And Concealed)

The story on the $85 million jury verdict against San Diego County is here.


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