Discovery documents: Why is a witness eating one?

First: what is this thing called “Discovery” anyway? It is two things: a stage in a lawsuit, and the documents produced by that stage in the lawsuit.

The discovery stage of a lawsuit begins usually just after the complaint has been filed and served, and the defendant has hired a lawyer and has answered the complaint.

At that point, the plaintiff’s lawyer (usually the plaintiff goes first at this stage, and the defendant follows with his own discovery demands) compiles a legal document called a Discovery Demand, and sends it to the defendant’s lawyer. The Demand lists specific and general categories of documents, a/k/a evidence the plaintiff believes that the defendant has in his possession,  that will help the plaintiff prove her case.

Gimme this, gimme that.

Sounds kind of bizarre, doesn’t it? We plaintiffs are demanding that “our” defendants help us provide proof of our contentions so we can win our case. And the rules say that defendants have to comply, or else.

(If you’re pining to read New York’s very, very, very long CPLR Section 3101, use the link under Sites of Interest in the right column of the home page of Sidebar. Advice: you’ll get the essence from the first sentence.) (And the “or else” warning you can read about in the linked article. For his part, the ex-cop who might get the “or else” — in his case a two-week jail sentence — stated that it was no prob. He’d bring pajamas and a toothbrush.)

(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof – See more at: http://codes.lp.findlaw.com/nycode/CVP/31/3101#sthash.kMNsGWaB.dpuf
(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof – See more at: http://codes.lp.findlaw.com/nycode/CVP/31/3101#sthash.kMNsGWaB.dpuf

Richard Masten, an ex-police chief now with Miami-Dade crime stoppers, sitting on the witness stand (in Florida, again; why does everything crazy or rotten happen in Florida? Oh, that’ s not so, of course. A lot of bad things happen in Texas. And other places. But mostly in the South)… anyway, Richard Masten, ex-police chief, sitting on the witness stand in a criminal case, refused to turn over first to the defendant’s lawyer and then to the judge evidence of an anonymous crime-stopper call that led to the arrest of the defendant on trial.

Why and what happened I leave to the marvelous Lowering the Bar (with photos of this guy sitting on the witness stand chewing away): “Bound by Honor to Defy a Judge … and Eat a Document” – Lowering the Bar.

Much more, and much more serious, about discovery: how one single lawyer discovered what he needed to bring about the General Motors revelations.

I’ve written before about “smoking guns” among discovery documents. The above story is about another one.

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