Three Cases Every Personal Injury Attorney Should Understand when It Comes to Discovery

Recently, I wrote an article for Plaintiff, a magazine that is founded on supporting plaintiff’s attorneys.  My contribution to the magazine explores looks at the impact of discovery responses on the trial process.  I examine the leading cases that have excluded evidence from trial that was not identified in pre-trial discovery responses. The article will help you analyse the merits of the boilerplate motion in limine to exclude evidence not produced in discovery.  Here is a preview of the topics discussed in my article:

• Willful Omission.  It’s not wise to attempt to willfully omit the name of a witness in an attempt to leverage your case when it goes to trial.  This tactic may result in the trial judge ruling that the undisclosed person’s testimony be excluded. The most cited example of this is Thoren v. Johnston & Washer, (1972) 29 Cal.App.3d 270, a case in which a potentially pivotal witness’s testimony was not permitted due to the plaintiff’s willful omission of that person’s identify in their discovery responses.

• Evasive & Incomplete Answers.  There is a big difference between a willful omission and an evasive or incomplete answer to discovery.  The case of Saxena v. Goffney, (2008) 159 Cal.App.4th 316 illustrates this point.  In Saxena the court of appeal ruled that a treating doctor and nurse should have been allowed to testify at trial even though they were not specifically identified in defendant’s discovery responses.  The court of appeal pointed out that the witnesses potential existence was identified generally; and therefore it was the propounding party’s responsibility to follow up and compel an answer to a vague discovery response.  Exclusion was not the proper remedy under these circumstances.

• Withholding of Evidence.  Not all testimony comes from people on the stand.  There are times when an audio recording can be used as evidence at trial.  In Deter v. Angus (1986) 179 Cal.App.3d 241, a possible game-changing tape recorded conversation was deemed inadmissible, as a result of the offering party’s failure to mention the tape recordings existence in two different interrogatory responses.

To learn more about the precedent-setting cases that can help you and your personal injury clients fulfil their discovery responsibilities, check out my article in Plaintiff Magazine, “What trial teaches us about discovery.”