Jury Instruction for Inaccurate Discovery Responses?
Lawyers cannot create facts, we just litigate them. We frequently must rely upon our clients to provide full and accurate answers to factual questions. If the client says a requested document never existed, then we’re usually stuck with that answer. But what if the client was less than truthful? I suspect most lawyers in that circumstance might just issue a supplemental response and try to negate the issue. Opposing counsel would be wise to dig a little deeper.
Consider this example. Event occurs and Participant 1 sends a Facebook message to the spouse of now-deceased Participant 2. That Facebook message has rather relevant and juicy information about event. Participant 1 later sues various companies for the event. Three of the companies each sent requests for production that should have obligated Participant 1 to produce that message. She never did and never hinted that it even existed. I suspect she never told her lawyers about the message. Company X hires me shortly before trial and I find the message through the previously reluctant spouse/witness. Spouse is deposed and lays foundation to authenticate the message. Participant 1 still does not supplement her responses to requests for production or even offer a mea culpa.
What to do? This is not a situation where additional documentation was located later, or where the parties disagreed over the language or scope of the request. The requests for production were clear and Participant 1 did not fully or honestly respond.
How to handle this situation? I asked for a jury instruction informing the jury that Participant 1 was asked to produce this message three times and failed to do so each time. NRCP 37(c)(1) governed the request. A “party that without substantial justification fails … to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.” Applied here, Participant 1’s responses were never amended, so the Rule’s remedy is inapplicable. However, NRCP 37(c)(1) also states:
In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney’s fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure.
Relying upon this language, I requested this jury instruction.
Before trial, the parties conducted what is called “discovery.” During discovery the parties do many things, like depositions. Discovery also allows each party to send written requests to the other. Participant 1 received three written requests that required her to disclose the Facebook message she sent to Spouse. Participant 1’s answers to those requests never disclosed the Facebook message. Instead, Spouse provided the message to Company just before trial.
The Court has concluded Participant 1 failed to produce relevant evidence and did so without a satisfactory explanation. Consequently, the jury may infer the Facebook message Participant 1 sent to Spouse is unfavorable to Participant 1.
Ultimately the instruction was not given as a result of a bevy of motions in limine on other topics that in turn affected this request. I share this regardless because it emphasizes the importance of accurate discovery responses and the risks clients may take without ever telling their lawyer.