Navigating Discovery Disputes in Personal Injury Cases

What do you do when you know other documents have to exist but the defendant says they’ve produced everything? Courts seem less and less willing to get involved in discovery disputes as they already have a large caseload and are working through COVID backlogs.

One option is to do a 30(b)(6) deposition with topics on sources of information, how they are stored, who has access to them, how the evidence can be retrieved, etc. Then you can tailor your discovery requests to get the information. You can also ask other employees in depositions about the types of evidence that may exist, where they are kept, if they did anything to search for it, etc.

Another option is to use the absence of documents to your advantage. If the non-existence of documents would be bad for them, you can just let it be and use that to your advantage at trial.

You can also send Requests to Admit that ask them to admit that they have no documentation showing X.

For example, say you have a trip and fall with a static defect and they say they have no maintenance or inspection records. Ask them to admit they have no documentation showing they maintained or inspected the area in the last 10 years. If other people have fallen in the area, ask them to admit that they have no documents that show they did anything to discuss the event and reduce the risk it would happen again.

One of two things will happen when you send those requests:

1. They’ll admit your request and it will look really bad for them at trial.
2. They’ll realize how bad it will look if they have to admit it and they’ll dig deeper to try to find the documents, which could lead to evidence that allows you to tell a story of negligence that goes back months or years before your client’s injury.

Don’t just rely on the court to get involved to force the other side to participate in discovery.

There are things you can do to push your case and get the evidence you need, even if the court is not willing to take an active role in managing discovery disputes.

What do you think? Join the conversation with me on LinkedIn.