“I’m shredding the document, I’m keeping my mouth shut, I’m running on radio silence. . .”

- John Hiatt, “Shredding the Document” 1995

Discovery Abuses: What Not To Do

Not just for legal geeks, “discovery’ has seeped into common culture in songs, news, tv and movies. That’s because discovery’s a big deal when it comes to court cases. Used properly, discovery makes your case easier and your outcome better; used improperly, it can bring your case down around your ears.

To recap what you need to know about discovery in case you missed Discovery: The Tool You Need to Know 'What's in Your Wallet' or The Discovery Tools Available in Oregon Family Law Cases, discovery is a set of tools used to get evidence and information you can use in mediation and court. It includes ways to get records and other documents, ways to get the other party in your case to answer questions and ways to get experts involved to evaluate issues in your case. Last week we talked about the ways to use discovery, including examples of uses and how to get started.

In this article, I’m going to talk about the top five discovery abuses as well as the top five discovery mistakes.

This is so you can recognize when discovery is being misused/abused and so you can avoid making mistakes that could hurt your case. In the fourth and final article in this series, I’ll talk about the ways in which the judge can help you if you’re playing by the rules and how the judge can hurt the case of anyone who isn’t.

Top Five Discovery Abuses

1. Hiding Evidence

If you watched the movie My Cousin Vinny, there’s a great scene in which Marisa Tomei explains discovery in criminal law cases. She tells Joe Pesci (Vinny) why the DA gave him all his files: he had to under the rules of criminal procedure.

Unfortunately, in Oregon family law cases, there’s no such requirement.

Neither you nor your spouse/domestic partner or co-parent are required to provide all of your evidence/potential evidence to each other. Instead, each side must provide all documents and information requested. In other words, unless you’re asked for a document, you don’t have an obligation to provide it.

 But, if you are asked for documents, or asked to admit or deny statements, you have to provide all the information that is requested unless you get a court order not to do so (more about that next week).

Parties can’t pick and choose which documents they want to provide.

Such attempts to hide evidence can result in sanctions.

2. Destroying Evidence

In this age of identity theft, cyber scams and the like, it’s a good idea to shred important documents you no longer need; UNLESS they relate to a request for information in your case. If a party shreds documents, destroys videos, or otherwise gets rid of inconvenient evidence that has been requested by the other party, it’s a big deal.

If lawyers do it, they face sanctions from the judge and can be disciplined by the bar. If self-represented litigants do it, they too can find themselves facing sanctions.

The term for destroying evidence is “spoliation” and if a party does it, they risk having their case dismissed, having evidence kept out of court, or having the judge accept as evidence the worst conclusion that can be made about the destroyed evidence.

3. Excessive Requests or Productions

Requests: Just because a case is ongoing, it doesn’t mean a party can use discovery to harass, embarrass or burden the other side with “excessive” discovery requests. The scope of discovery is broad: whatever is evidence or likely to lead to relevant evidence is fair game. What is not fair game is asking for mountains of paper or information that don’t relate to relevant information.

A good example that comes up in family law cases is when one side asks the other to provide years and years’ worth of documents without tying it into the case.

Or a party wants emails or texts to show that one of the parties have had affairs (Oregon is a no-fault state so proving one party cheated is not relevant).

Productions: Hollywood has done a good job showing what this looks like. In the 1991 movie Class Action,the corporate automaker wants to bury the key documents like needles in a haystack so they send truckloads of irrelevant documents. This is not likely to come up in family law cases but I have seen it tried. It usually fails as most individuals don’t have enough paper to fill the trucks seen in Class Action.

4. Stonewalling Appropriate Requests

As we’ll get into more in the final article in this series, there are ways to limit discovery. However, if taken too far, this can be seen as “stone-walling” or “obstructing” valid discovery requests. Examples of this include making objections to reasonable categories of requests for asset information, income and employment records, communications, and the like.

Remember, discovery isn’t limited to what will be evidence; it includes what could lead someone to evidence.

Another way that parties can stonewall is by objecting to the time frame of discovery. There are good reasons to go back in time beyond the one year in the mandatory family law discovery requests. Trying to limit the time frame to a small window is not going to work.

Finally, stonewalling can be handing over information so late that the party asking for it doesn’t have enough time to review it and use it.

5. Fabricating Evidence

Fabricating evidence can be in the form of creating fake documents and information (there are a lot of examples in the press of AI video fakes and photoshopped pictures). But fabricated evidence also includes changes to existing documents.

A great example from Hollywood was in the movie The Verdict, with Paul Newman. The case in that movie involved medical malpractice. The doctor changed the number 1 to 9 regarding when the patient had last eaten. I have seen it come up where people provide excel spreadsheets of information which we learned were not accurate when we got the actual financial records from a third party.

Some fabricated evidence is easier to spot than others but as technology advances, there are more and more ways that people fake evidence.

The Top Five Discovery Mistakes

1. Delaying Discovery

At the risk of repeating myself, discovery is where you can get the important information you need for your case. But there are rules about the timelines. A party gets 30 days to respond so sending out a request the week before trial is not going to get you what you need. If you are the receiver of the request, and you don’t review it and respond in time, you might miss the chance to get protection from abusive discovery.

In addition, if you get good information in response to your request, you may want to track down further information.

If you start too late you run the risk of not getting valuable evidence.

2. Not Thinking it Through

It’s important to think about what you actually have to prove at trial or disprove about what the other party puts in evidence. Sending out a wide or vague request may get you a lot of useless information that will take time and, if lawyers are involved, money to get through.

Likewise, if you don’t look at all the important facts, you may miss key documents. Also, you want to think about the order in which you get information. You are not limited to one set of requests so you may want to break it down by topic (financial, the children, etc.) or by discovery type (documents first, questions after, etc.) 

Advance planning is generally a good idea but it is vital in court cases.

3. Not Taking the Time to Go Through It

This is related to item 1, above.

If you get documents, go through them right away so you leave yourself time to process what you have.

You need to figure out how it fits into your case. You also need to have time to put documents together as exhibits. Doing that the day before the trial will create unnecessary stress. You also want to know what you have. 

I have seen lawyers putting together case documents which they didn’t take the time to carefully review which I could tell by their questions. It was a waste of time and effort in the discovery and slowed down the trial.

Finally, as you go through the documents, you may learn that things you thought were true just aren’t. Or the evidence doesn’t fully support a point you want to make. The only way to know this is to go through the discovery.

4. Not Following Up

If you are up against someone who is stonewalling or hiding evidence, you need to follow up.

As we’ll talk about next week, the Judge can help you but only if you’re persistent.

If you didn’t get what you expected to find, you need to reach out to the other side and find out why.

It may be that the information is just not within their control in which case you need to go to third parties.

If you have avoided the mistakes in 1-3 above, you’ll know what is missing that you need, and you can send out additional requests. 

Another important rule in discovery is that there is a duty on each party to add to their discovery as they get more information. Think: new statements drop in an account or income information changes due to a raise.

5. Not Getting Help

Lawyers have entire seminars about how to handle discovery well, so don’t feel bad if you find that you need some help getting started, navigating the process or learning about what you can do. 

This is where a limited scope lawyer can help – scheduling an hour to learn about discovery can make all the difference in what you do or don’t get in discovery.

A lawyer can help you create your requests, draft your responses and organize what you get. You can also get the judge to help you if you are running into problems.

Whether it is because you are getting buried in requests or are being stonewalled. But the judge can’t help you unless s/he or they know what’s happening.

We’ll talk about discovery motions in next week’s post.

I hope this helps you better understand what is to come in the discovery phase of your case.

And by the way, I recommend all the movies mentioned in this post along with John Travolta in A Civil Action.

None of them involve family law cases so they can give you a break from your case while also familiarizing you with some of the terms.