In that specific case, there was so much of that going on that the case fell apart. But that’s not always the case. And in any event, a dishonest person is in better shape being able to change their story than having it exposed and contradicted on the stand.
Plus, there are frequently many corroberating details that can be concocted and be helpful to the dishonest witness that don’t involve contradicting previously recorded statements. It’s not uncommon for witnesses to flesh out details of their stories later on in the process, and knowing what is out there in the way of other evidence will help a dishonest witness make a more compelling story than would be possible otherwise.
All of which leads them open to a nasty cross-examination by opposing counsel. It’s very difficult to lie consistently. I’ve seen good counsel expose witnesses as liers, by taking them through the documents, after they’ve nailed their colours to the mast in direct examination by their own counsel.
This is what’s known as the “fishing expedition.” It’s been known to happen, of course, but the difficulties brought up by Cliffy are not so easily surmounted as you suggest.
The allegations of the plaintiff will not count as a basic evidentiary showing on a motion to quash a discovery request. Judges were once law students who were presented with the very hypotheticals you raise now; thus, they are aware of the need to balance the plaintiff’s right to discovery to make his case with the real possibility of abuse you mention above.
In addition, I don’t know where you got the notion that the plaintiff generally may sue anonymously, that just isn’t true. Proceeding anonymously is generally disfavored by the courts and will only be granted in cases where there is a genuine danger of harm or intimidation being visited on the plaintiff or would result in further violations of extremely intimate privacy interests.
Finally, a court would not be insensitive to the cumulative effect of an anonymous plaintiff averring naked assertions of tortious conduct making highly intrusive discovery requests to the defendant. That is to say, superintending discovery is well within the court’s discretion and the court’s horse sense, along with its ability to fashion novel solutions to balance the interests at stake, go a long way to preventing the kinds of harassment you point out.
Depends on the skill of the liar and the skill of the opposing counsel. Can be done.
Especially as a skilled opposing counsel can frequently shred the testimony of even an honest witness, what with the minor discrepancies that tend to cloud people’s memories. In that context, the liar doesn’t look as bad.
Do you have a cite for this claim? I find it very surprising.
There are many many cases of lawsuits that go to trial with no evidence at the outset other than the plaintiff’s claims. It would follow from what you say that discovery would be quashed in all these cases. I am skeptical of this, especially in light of cases that I know which did not follow this pattern.
I got it from several actual cases in which it was actually done.
As you say, you need to allege something or other to accomplish it. No problem. Generally you allege some fear of humiliation and/or intimidation.
In addition to the initial disclosures Gfactor alluded to, FRCP (Federal Rule of Civil Procedure) 26(a) also provides that a party must disclose by a given deadline pre-trial the witnesses he or she intends to call and the exhibits he or she intends to attempt to enter into evidence. (The deadline varies by jurisidiction but is 30 days before trial in the Federal courts.) This is another bar to the old “Perry Mason” style court room bombshells which, as others have already said, are severely frowned upon in modern U.S. courts. They make good television, but IME judges do not like suprises.
Can you please cite a case where a plaintiff was allowed to sue anonymously? Because I’ve never heard of that, either.
No. In civil court in the U.S. you must allege that you have incurred actual damages, that your constitutional rights has been violated, or that there is a sufficient likelihood of either or both in the future as to justify injuctive relief. Fear of humiliation is not enough. Intimidation is not enough, unless it translates to some provable form of damages such as interference with a business relationship or infliction of emotional distress.
What about evidence that comes to light after the trial is in progress? Some bystander discovering that the video they were making in the area just happened to pick up some significant detail and they brought it to whichever attorney needed it.
Or something more likely to annoy the judge. A third party filming the incident but not letting anyone know that they have it in an attempt to stage a Perry Mason moment and be the hero. Neither party to the trial is at fault for failing to reveal the information. And the person making the video hasn’t broken any laws that I’m aware of, just exhibiting poor judgement.
To be clear, the plaintiff is not anonymous to the defendent. But he’s anonymous to everyone else (other than lawyers, witnesses etc.). Here are (what I believe are) some cases:
[ul]
[li]Roe v. Aware Woman Ctr. for Choice, Inc 253 F.3d 678, 685-87 (11th Cir. 2001)[/li][li]Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69 (9th Cir. 2000)[/li][li]James v. Jacobson, 6 F.3d 233, 238-39 (4th Cir. 1993)[/li][li]EW v. New York Blood Center, 213 F.R.D. 108, 110-12 (E.D.N.Y. 2003)[/li][li]Javier v. Garcia-Botello, 211 F.R.D. 194, 196 (W.D.N.Y. 2002)[/li][li]Doe v. Smith, 105 F. Supp. 2d 40, 43-44 (E.D.N.Y. 1999)[/li][li]Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y. 1988)[/li][/ul]
[I copied these from a court filing which listed these as cases in which the courts had ruled on and granted anonymity, but I’ve not looked them up. They also quoted Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 872 (7th Cir. 1997) as saying “fictitious names are allowed when necessary to protect the privacy of . . . rape victims, and other particularly vulnerable parties or witnesses”, and also cited Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004)]
It depends on how the evidence fits into the trial, and how much prejudice will result from admitting or excluding it. A good excuse for the delay can sometimes get the evidence in, but the judge might grant a continuance of the trial or permit mid-trial discovery (whee!) in order to permit a party to prepare to respond to the new evidence. If the evidence is crucial and the prejudice unavoidable, the court can grant a new trial. If the evidence is marginally relevant, the judge might just exclude it. In other words, judges have lots of discretion in cases like that.
I take your main disagreement with my analysis is whether bare allegations can constitute an “evidentiary showing” (and not that you are asking me for a cite that judges went to law school).
The standard for summary judgment, for instance, is that one must show, on the basis of the pleadings and discovery, that there is a genuine issue of material fact [and] the moving party is entitled to judgment as a matter of law (FRCP 56). Mere assertions do not rise to the level of showing a genuine issue of material fact.
Summary judgment is just one example where conclusory statements will not get you very far. You always have to meet your burden of proof. If I move to quash your subpoena, having made a prima facie case that it is intrusive, the burden shifts to you to show that your discovery needs outwiegh that. Merely saying “well, I just need to subpoena this stuff, OK” will not get you very far.
As to the anonymous suits: (1) I don’t think I said it never happens (and Jodi, you have heard of it happening, for instance, Roe v. Wade) and (2) it is disfavored, * see e.g.* http://www.blogdenovo.org/archives/001086.html.
Let me ask you: Do you think it’s likely that your hypothetical hasn’t already occurred to judges and lawmakers? To other litigants? To those other litigants’ victims, who then complain to judges and lawmakers? Do you suppose those judges and lawmakers then say “tough cookies, that’s how it is?” If judges and lawyers take such a dim view of privacy, why do they sometimes allow anonymous suits? Are they just unduly solicitous to those who allege a wrong? But then, why doesn’t the complaining discovery-harrassment victim enjoy the benefits of that bias?
The upshot of these questions is that many people seem to think that because our legal system is rule-governed, it must operate mechanistically, without any role for discretion or common sense. This is not the case; rather, the judge operates heuristically, superintending the trial within broad but under-determined permissible forms and using his or her discretion to see that those permissible forms are then fleshed out in a way that promotes the most effective administration of justice.
Who is talking about summary judgment? Possibly I am misunderstanding your use of legal terminology.
But you’re not saying “well, I just need to subpoena this stuff, OK”. I gave you an example in which you ostensibly need it. And again, you can tailor your claim to get what you want. (E.g. if you allege that the defendant has been secretly paying off witnesses, you get access to financial records. And so on.)
Judges are biased in favor of providing information to the court and trial process. They are not biased in favor of providing information to the public. I think that covers all your questions.
Cite for what? That “humiliation and/or intimidation” can cause the “infliction of emotional distress”? I think this is obvious. If you disagree, we’ll have to leave it here.
That’s essentially what happened in the Kwame Kilpatrick case. If opposing counsel discovered clear evidence of perjury after a witness had testified, he’d have a few options in the case:
Possibly recall the witness to confront the witness with the new evidence. Impeachment evidence is usually excluded from disclosure and listing requirements;
Present the evidence through another witness;
Move for a new trial or a mistrial; and
Alert the authorities. This would include alerting the judge in chambers if the evidence is excluded and alerting the prosecutor.
I brought up summary judgment as an example of how burden of proof works in motions (a similar analysis applies to discovery motions). Perhaps a better example would have been the offer of proof rule used in supporting the admission of evidence (the analogy would have been more apparent). When your evidence is objected to for relevance, you are entitled to make an offer of proof to the judge, that is, to tell him what you purport the evidence will show and how it will do that. Likewise, when a discovery request is objected to, you must show that your discovery needs outweigh the privacy interests of the other party and you must do so in a similar manner (what will this discovery likely show? why is it likely that it will show it? why is there no less intrusive way of getting this information?)
The judge is going to want more than just a story that describes your version of events before authorizing a highly intrusive discovery request. Some limited discovery will be permitted, but “everything on your computer” will not. Or alternatively, the judge will use his discretion to fashion appropriate methods. She may do an in camera inspection, and if the evidence isn’t there, she won’t allow the other side to get it.
Some jurisdictions require that emotional distress be supported by evidence of physical symptoms. Can you provide a cite that merely asserting “emotional distress” would be a sufficient allegation of damages under FRCP 8?
I don’t know that what you’re saying is true. Possibly it’s true in theory, but I don’t think that’s how it works as a practical matter, from what I’ve seen.
[What evidence did Paula Jones offer up for her story before she was able to force Bill Clinton to answer all sorts of questions about his private life?]
While there were no eye-witnesses to back up Jones’s account, Jones told a friend contemporaneously of the harassment and many other women were willing to testify to similar behavior by Clinton. In late 1997, Judge Susan Webber Wright ruled Jones was “entitled to information regarding any individuals with whom President Clinton had sexual relations or proposed to or sought to have sexual relations and who were, during the relevant time frame, state or federal employees.”
The evidence offered was (1) contemporaneous complaint (thus tending to show that the lapse in time was not spent crafting a story), (2) other unrelated victims who would testify to similar behavior, and the result was a limited discovery order.
I don’t think the Jones lawyers had evidence that there were these other women at that time. My impression is that they asserted that these women existed, and tried to subpoena favorable testimony from them.
Interestingly, Judge Wright forced Clinton to testify while putting off ruling that the testimony would ultimately be admissable, and despite her own later finding that the Jones lawsuit lacked merit entirely regardless of what any other women might say. See: http://www.pbs.org/newshour/impeachment/trial/ruff_1-19.html
That may be, but there a great gulf fixed between this and your worry–what started this line of posts–that there is nothing to stop a determined antagonist from instituting a lawsuit based on a claim made out of whole cloth to conduct burdensome and humiliating discovery against his enemy. (After all, and while I have neither great love for nor hostility towards the Clintons, we know that he did engage in sexual relations with that Miss Lewinsky (he even, literally, wagged his finger at us!) and the seeming consensus is that he probably did with Paula Jones too. I realize this is entirely a thread hijack and that, in general, the less said about Clintons, the better.)
According to my link, “some [of the alleged “other women”] had sought to avoid testifying by submitting affidavits to the effect that they had no knowledge relevant to Ms. Jones’s lawsuit or that they otherwise did not meet the tests that Judge Wright had established before permitting this invasive discovery to go forward”. Anyone can claim that other people will back them up.
And regardless of whether in fact Clinton slept with PJ or not, what’s significant is that although Judge Wright later ruled that
this did not stop her from compelling the initial testimony.
This suggests that the basis for compelling discovery was very flimsy indeed, and concerns for the privacy of the defendant were not accorded all that much weight, which is in line with my concerns.