The four standard interrogatories that are relevant to family court are basically questions about witnesses, expert witnesses, and trial exhibits. Any initial request for production worth issuing should include a request for any exhibits that the other party might use at trial. If discovery—which I acknowledge most of my colleagues hate and I acknowledge as the most tedious part of litigation practice—accomplishes only one goal, that goal should be to educate the attorney about what evidence and witnesses the other side intends to present at trial.
Trial courts—quite properly—exclude from introduction witnesses and evidence that a party failed to reveal in discovery. “Before excluding a witness as a sanction for violating the continuing duty to disclose information the trial court should ascertain (1) the type of witness involved, (2) the content of the evidence, (3) the explanation for the failure to name the witness in answer to the interrogatory, (4) the importance of the witness’s testimony, and (5) the degree of surprise to the other party.” Jenkins v. Few, 391 S.C. 209, 219, 705 S.E.2d 457, 462 (Ct. App. 2010). The trial court will generally preclude the introduction of evidence that was not produced in discovery. See e.g., Samples v. Mitchell, 329 S.C. 105, 112, 495 S.E.2d 213, 217 (Ct. App. 1997)
One might think that concerns over unlisted witnesses or unproduced exhibits being precluded from use at trial would cause attorneys to be overinclusive in their disclosure of witnesses and exhibits in their initial discovery responses. That is not my experience. In two of the three custody trials I’ve had this year I represented a Defendant/Father and was able to exclude much of the Plaintiff/Mother’s proffered witnesses or exhibits because Mother’s initial trial attorney provided a bare-bones witness list and trial exhibits. When it came time to try the case much of the evidence these mothers had provided their initial trial counsel was excluded because it was never produced and subsequent counsel did not think to review and supplement these deficient responses.
Given this concern over witnesses or exhibits being precluded at trial, my strategy is to be over, rather than under, inclusive in responding to initial discovery. I once had opposing counsel object that I had produced over 10,000 documents in discovery. His claim was accurate; his objection unwarranted. His discovery requests sought these 10,000 documents and I had no obligation to reveal which 1% of those documents I might use at trial—frankly, until the month or week before trial I’m unlikely to have a firm idea which documents I might use at trial. Better to produce 1,000 documents and use 100 than produce 10 document and find additional documents excluded.
One of my routine tasks when I finally have trial dates is to have my client review initial witness lists and document production and have me supplement discovery responses with additional witnesses and documents we might want to use at trial. When opposing counsel sees these supplemental discovery responses months before trial but weeks after trial is scheduled, one might think they would be prompted to similarly update their discovery responses. This rarely happens. Then, at trial, they find they cannot introduce evidence or call witnesses because they never listed a witness or produced a document.
I do many things differently than the majority of my colleagues. Most of these differences simply reflect judgment calls. However, being underinclusive on witnesses and document production in initial discovery responses or failing to supplement when trial is scheduled aren’t judgment calls; they’re malpractice.
Greg, this is great. You are absolutely right.
And I hope more attorneys will begin to do
What you are doing to help their clients also.