Discovery

Writ of Certiorari to Remedy Pre-Trial Discovery Order

Posted by David Adelstein on August 12, 2017
Discovery, Standard of Review / Comments Off on Writ of Certiorari to Remedy Pre-Trial Discovery Order

Sometimes, a trial court issues a pre-trial order on a discovery issue that a party claims causes it irreparable harm.   In this situation, the only basis to appeal the pre-trial discovery order is through a petition for writ of certiorari, as recently explained by the Second District Court of Appeal:

A party seeking review of a pretrial discovery order must show that the trial court’s order departed from the essential requirements of law and caused material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.  Generally, certiorari is not available to review orders denying discovery because in most cases the harm can be corrected on appeal. But certiorari relief may be appropriate when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim.  The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.

Westerbeke Corp. v. Atherton, 42 Fla.L.Weekly D1741c (Fla. 2d DCA 2017) (internal quotations and citations omitted).

In this recent opinion (discussed in more detail here), the trial court in a product liability case denied a defendant’s right to perform destructive testing of a boat’s gas generator that caused an explosion. The defendant claimed the destructive testing was necessary to determine the cause of the explosion and prepare a defense. In other words, the harm imposed on the defendant could not be corrected on a final appeal since the harm prevented it from generating a sufficient defense. Here, the Second District granted the writ of certiorari because the trial court applied the wrong legal standard in denying the defendant’s request to perform destructive testing. The take-away is the Second District’s explanation as to when certiorari relief is appropriate to remedy a pre-trial discovery order.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Note on Discovery in Litigation

Posted by David Adelstein on June 19, 2015
Discovery, Evidence / Comments Off on Note on Discovery in Litigation

Unknown

Here is a quick note on discovery in litigation (e.g., document requests, depositions, interrogatories).

An objective of discovery is to discover information that is reasonably calculated to lead to the discovery of admissible evidence. In other words, just because the discovery appears irrelevant does not necessarily mean that pursuing such discovery will not reasonably lead to the discovery of admissible evidence. By taking a more liberal approach to discovery, hopefully, some of the unfortunate gamesmanship that occurs during discovery is eliminated or reduced. In particular, parties should not be able to unilaterally dictate what they believe is relevant to another party’s claims or defenses. This would just result in parties potentially hiding information, concealing information, or not producing information under the pretext that such information is not relevant as determined by that party. Who wants this? Many times, disputes get resolved during discovery or after discovery runs its course as parties are able to better evaluate the strengths and weaknesses of their case based upon another party’s analysis and theories supported by the information.

Now, just because there is a more liberal approach to pursuing discovery does not mean parties have carte blanche to discover everything or go on fishing expeditions. Discovery is not intended to be a tool to harass another party by seeking evidence / information that is categorically irrelevant to the dispute at-issue. Check out this article for an example of a court granting a writ of certiorari due to the irreparable harm of a plaintiff trying to pursue categorically irrelevant discovery that could not reasonably lead to the discovery of admissible evidence.

Moreover, when parties know that there is a dispute, they have an obligation not to spoil (destroy or alter) relevant, critical evidence, specifically with electronically stored information. By not taking steps to preserve evidence, a party could be subject to discovery sanctions, the dreadful adverse inference jury instruction, or in worst-case scenarios, the striking of pleadings. Check out this article for more information on spoliation of evidence including the dreadful adverse inference jury instruction (that no party wants!).

Discovery is crucial fact-finding process in litigation to discover evidence in your case. It is also a tool used to authenticate certain evidence and/or lay the foundation for certain evidence.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , , , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com