Beyond the Bar

• Publication year: 2022
• Pages: 22

Beyond the Bar Vol. 33 Issue 5 Pg. 22 South Carolina Bar Journal March, 2022

Discovery and Evidence in Civil Trials: as the Violins Rise to a Peak . . . .

By Warren Moïse

Think of discovery and trial evidence as Burt Lancaster and Deborah Kerr in From Here to Eternity. There they lay, kissing in the splashing surf as the violins rise in volume, crescendoing . . . . "I never knew it could be like this," she moans. "Nobody ever kissed me the way you do[!]."

Oh baby!

Let me back up. What I mean to say is that discovery and trial evidence are rather intimately connected, though not that connected. Their dance begins long before the jury is struck and continues until the party is over.

Discovery has two primary procedural effects. First, a failure before trial 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. Let's take look an, um, dispassionate look at these two lovers and how they come together.

Some history and policy

Under early common law, depositions, interrogatories, requests to produce, and the other pretrial procedures now taken for granted weren't 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).

These days, modern discovery, enabled by statutes and rules of procedure, is seen as critical to proper trial preparation, (though there has been some backtracking lately).

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). ("Transparency" is the modern buzzword.)

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. Here, however, impeachment evidence sometimes is viewed differently from other evidence. The Fourth Circuit has...