The only two goals of responding to discovery

Posted Saturday, March 10th, 2018 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

There are common bad practices of responding to discovery. One often sees responses that are incomplete and only partially respond to the request. The rules of civil procedure are quite explicit that an “incomplete answer is to be treated as a failure to answer.” Such incomplete responses subject the responder to a motion to compel, with a sanction of fees and costs for having to obtain complete answers.

More frequently one encounters evasive responses. Many folk have apparently studied Bill Clinton’s “It depends on what the meaning of the word ‘is’ is,” when crafting their discovery responses. It is a source of endless amusement to see folks suddenly lose the ability to understand common English words in drafting evasive discovery responses. However the same rule that treats incomplete responses as failures to respond also treats evasive responses as inadequate.

Actually evasive responses are even better (for the other side) than incomplete response. A successful motion to compel will result in two sets of responses–the initial evasive ones and the subsequent adequate one. On cross examination you can make the responder look silly by questioning him or her about the obvious evasion. A party who is articulate when answering helpful questions but is rendered dumbstruck in answering troubling questions is highlighting a lack of credibility. No one thought Clinton looked clever by the above statement–they thought he looked both evasive and stupid.

Then there are the folks who simply lie in discovery responses. This is especially problematic for interrogatory answers, which a party is required to verify under oath. I have previously written that it is better to be an adulterer than an adulterer and a liar. That lesson holds true for all lying in discovery. Many family court cases turn on a handful of disputed facts, with the family court judge being the ultimate arbiter of credibility, and with such credibility findings given great deference on appeal. If one party is shown to have repeatedly lied in discovery and the other party has not, the likelihood of prevailing on disputed facts, and therefore winning on disputed issues, is greatly enhanced.

Finally there are the parties who use discovery responses as an opportunity to spew, justify and explain. While this may be emotionally satisfying it is counterproductive. The more information one provides in discovery the more opportunities one has to be wrong and the better educated the opposing party will be. As noted above, one shouldn’t be evasive or inaccurate when responding to discovery–but one shouldn’t provide extra information either.

The above describes bad methods of responding to discovery. There are good methods. However those good methods require an understanding of the limited goals of discovery responses. The first goal is to limit the other party’s ability to attack one’s credibility through the discovery responses. The second goal is to ensure that, at trial, one’s evidence will not be precluded from introduction and one’s witnesses will not be precluded from testifying.

To achieve the first goal one should answer the discovery fully (as an incomplete answer is a failure to answer), non-evasively (as an evasive answer is a failure to answer), and accurately (as one doesn’t want to lose credibility) without providing extra information. Basically this first goal is to avoid all the mistakes noted in the first half of this blog.

The second goal requires thinking about trial early in the case. While one can always add witnesses or produce documents through supplemental responses, waiting close to trial to provide this information can result in the court excluding the evidence or witnesses as being untimely furnished–especially when the untimeliness prejudices the opposing party. This doesn’t mean that a witness or exhibit disclosed on the eve of trial will be excluded–sometimes the evidence doesn’t exist or the witness become relevant until the eve of trial. However when one knows that a witness is vital to the case, that witness should be disclosed in the initial discovery responses.

Documents that one knows will be useful at trial should also be obtained early in the case. In responding to requests for production, parties have no obligation to obtain documents that are not in their possession. They merely need to make these documents available for copying and inspection by authorizing a third-party who has possession of these documents to allow the other party to obtain them. However there are certain documents I require my client to obtain. If there are disputes over title to property, I direct clients to obtain copies of the titles. Where alimony is at issue, I have clients obtain their social security earnings history. Where property division is at issue, I have clients obtain documents showing the values of assets and debts on the date of filing. Further, as litigation proceeds, and one learns which facts are disputed, I direct clients to obtain documents that bolster the client’s allegations on the disputed facts. This document collection is discovery responding as a form of trial preparation.

Responding to discovery is the most tedious part of litigation. While most clients and attorneys loath it, one cannot let this dread result in responses that prejudice the case. Discovery answers that help one prepare for trial, prevent one’s evidence and witnesses from being excluded at trial, and prevent successful credibility attacks should be the sole goals of the process.