Some times, the most basic part of the case, discovery, can often be the most frustrating part.  In most cases, some amount of discovery is needed to do the due diligence necessary to bring a matter to its conclusion with some sense of comfort that the issues have been adequately addressed.  In complex cases, especially cases where there are businesses and other significant assets to value, the failure to complete discovery often stops a case in its tracks.  I have a few cases now where the business owner is simply stonewalling discovery. 

In your typical case, you may serve interrogatories (written questions to be answered under oath) and a document request.  Though per court rules, the responses are due in 60 and 45 days respectively, the rules are most often honored in the breach.  Is it right?  No.  But most people figure that they can get away with ignoring the rules because the deadlines to answer will be set at the first Case Management Conference.  And even when you complain that your discovery is now over due or due shortly, inevitably, the deadline is set for 60 days in the future, give or take.

Then what happens.  People ignore the new deadline.  When you finally get the discovery, you often get half-hearted, incomplete answers and some but usually not all of the documents requested.  While many banks and credit card companies let you go on line and print out a year or several years of past records, and certainly will provide them to you when you ask, most people don’t ask and just send an incomplete production which only serves to delay the process and cost both people more money (they don’t think about that when the complain that the process takes too long and costs too much).  They may offer to sign authorizations so that you can get the documents yourself.  More delay – more expense shifted to the other side. In response to the weak answers, sometimes you may serve a request for more specific answers, only to get more drivel, if you get a response at all.

This is the discovery dance.    Several months go by and basic information still isn’t exchanged.  Sometimes it is so late in the game that a judge says you can’t do any more discovery.  As we have blogged before, where someone has sandbagged a case, that argument shouldn’t fly.

Continue Reading The Discovery Dance

Essentially, the Appellate Division confirmed that this is not a came and gamesmanship and playing hide the ball cannot be permitted. Most cases will settle but if a matter is going to be tried, the parties are entitled to have the evidence necessary to either prove or disprove issues at trial. Nothing less is acceptable. The search for the truth must be preserved and the court cannot permit the obfuscation of facts held solely by that party by allowing anything less than full discovery of those facts. Moreover, if that party will not provide discovery, court should, as is their right, draw adverse inferences against that party. The Court should not hurt the other party by shifting the burden of proof to that party and at the same time preventing that party from meeting their burden by obtaining the critical discovery.
Continue Reading The Next Time the Judge Says You Can't Have More Discovery, Remind Her of This Case