SC Lawyer, July 2003, #1. Beyond the bar July 2003 Discovery and evidence in civil trials.

AuthorBy Warren Mo\xEFse

South Carolina Lawyer


SC Lawyer, July 2003, #1.

Beyond the bar July 2003 Discovery and evidence in civil trials

South Carolina LawyerJuly 2003Beyond the bar July 2003 Discovery and evidence in civil trialsBy Warren MoïseDiscovery and trial evidence are rather intimately connected. Their dance begins long before the jury is chosen and continues until the party is over. Discovery has two primary procedural effects. First, a failure to timely answer discovery requests or to fully disclose requested information can bar the use of documents and testimony at trial or give rise to adverse inferences. Second, the discovery documents and responses may themselves become evidence.

Some history and policy

Under early common law, depositions, interrogatories, requests to produce and the other pretrial procedures now taken for granted were not allowed in the law courts. A party wishing to compel information from an adverse party had to file a petition in the chancery. This hearing in an equity court was called "discovery." Samuel L. Prince, Our Common Law Heritage 25 (1959). Now discovery, enabled by statutes and rules of procedure, is seen as critical to proper preparation for trial. The contemporary public policy underlying discovery is one of openness. "The entire thrust of the discovery rules involves full and fair disclosure to prevent a trial from becoming a guessing game or one of surprise for either party." State Highway Dep't v. Booker, 260 S.C. 245, 252, 195 S.E.2d 615, 619 (1973).

Failure to comply with discovery: some evidence is more equal than others

Civil Procedure Rule 37(b) allows a judge wide latitude in awarding sanctions for failure to properly comply with discovery requests, including barring a party from introducing any evidence on a matter upon which discovery was sought. However, impeachment evidence sometimes is viewed differently from other evidence. The Fourth Circuit has held that despite non-compliance with a request to produce correspondence "relating to any issue in the case," the defendant's failure to produce such documents relating solely to impeachment (as opposed to substantive matters) did not require their exclusion under Federal Rule of Civil Procedure 37(b)(2)(ii). This is because the documents did not become relevant as prior inconsistent statements until denied by their author during...

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