Well, ask yourself: Were the plaintiff’s claims flimsy? Especially in light of what we know now? Paula Jones could not withstand summary judgment, but the standard for discovery is not “You will win the case” or even, “What you find will be admissible.” So long as the discovery can be reasonably expected to identify admissible evidence it should be allowed. The thumb on the scale does favor discovery. However, between the outer limits on harrassing as well as in camera inspection or super-confidential designation (where the discovery can only be produced to the parties’ outside counsel and not revealed to the parties themselves) and other protective measures, I think your worry about regularly-occurring gross abuses is misplaced.
Is the defendant required to supply evidence that would be the only means to the plaintiff’s ability to prove a case?
For example - plaintiff sues on an allegedly defaulted contract - plaintiff provides no copies of contracts/agreements themselves - during discovery, plaintiff requests defendant “to provide all documents relevant to the contract” (in the original summons, it is alleged by the plaintiff that the defendant has/should have them).
In defendants answer to summons, defendant has denied the claims (either with explicit denial, or 'lacks sufficient knowledge").
Doesnt the burden of proof on the plaintiff require them to produce documents/evidence without asking the defendant for them?
A plaintiff can file a complaint even though the plaintiff hopes to gather all the necessary proof in the course of discovery, even if that means the defendant ultimately hands over all the proof necessary to prove the plaintiff’s case. Once discovery is complete, the plaintiff can hopefully meet its burden of proof at trial by the information and documents received in discovery.
Not at all. In the first place, the written document is only evidence of the existence of a contract. You can prove breach of contract even if the agreement was never reduced to writing (there are some other issues that would come up if the subject matter of the contract fell within the statute of frauds).
As to your more general point, could a litigant ever get discovery without a jot of evidence, the answer is a qualified yes. Again, don’t understand the law of civil procedure and evidence in this area as operating mechanistically. What would happen is the judge would look at the pleadings and the litigant himself and look for indicia of truthfulness. If the pleadings were legally sufficient, plausible, and detailed and the litigant seemed honest, a judge would probably allow some minimal discovery at whose conclusion the question of whether there is any corroborating evidence or not could be answered. If the plaintiff has scared up evidence, the suit will proceed; if not, a smart defense attorney (OK, any defense attorney) would move for summary judgment.
Again, it depends on the law of each jurisdiction. You can’t give a yes or no answer to this question that applies in all court cases.
In my jurisdiction, the answer to your question would be yes - both parties are required to disclose all documents that are even marginally relevant to the action. If the plaintiff is suing on a contract, the text of that contract is clearly relevant to the action, so the defendant would have to disclose the existence of the copy of the contract, and would have to allow the plaintiff to inspect it and copy it, in the pre-trial discovery phase.
The purpose of this rule is to further the ends of justice, by ensuring that both parties are as fully informed as possible as to all the relevant facts, and in turn are able to put them all before the court.
As a side issue, I might add that preparing a Statement as to Documents in a major civil action is one of the most tedious things that an articling student or junior lawyers is called on to do … not that I’m bitter (now that I have articling students myself that I can pawn it off onto 
).
Yes, as a rule – if, for instance, you’re a guy suing a big company, it makes sense that the company’s files would have all sorts of information on how and why they made decisions – and whether they did so improperly – that you couldn’t possibly have access to. But as for the specific hypo you suggest, the plaintiff would typically be required to present that kind of foundational document on his own.
–Cliffy
see why I keep harping on the issue of which jurisdiction you’re in? Cliffy has given a different answer from mine - in my jurisdiction the defendant would have to disclose the contract, but in Cliffy’s the plaintiff would have to produce the contract. The “law” is not some monolith - there can be considerable variation from jurisdiction to jurisdiction even on basic points of procedure.
Well, in American practice, most states have pretty similar statutes of frauds. Were a plaintiff to bring an action on a contract within the statute but without the document, I would guess they would either seek pre-filing discovery (if there was a writing that the plaintiff never got or in good faith failed to retain) or advance a promissory estoppel argument.
I would hasten to point out a lot of (most?) contracts do not fall within the SoF.
[sidebar]By the way, Kimmy_Gibbler, I’m enjoying your posts since you dropped in. Hope you hang around.[/sidebar]
Pre-filing discovery?
Aww, thanks. What a sweet thing to say.
Occasionally, for good cause shown, as the legal formula goes, you can have the court order production of documents or the like before you file your case. This isn’t very common, and I have no personal experience with it, but it happens. My supposition would be that it is used in cases like the one proposed upthread: where a statute of frauds requires a writing when suing on a contract which writing the defendant has but the plaintiff does not.
(The Statute of Frauds really is an example of legislative spin. It sounds like a good way to prevent mischief–require a signed writing for certain kinds of contracts or the contract is unenforceable. Who could be against fraud, after all? Unfortunately, its actual effect is more often to prevent the enforcement of real-deal agreements entered into between the parties on the basis of a technicality rather than putting the kibosh on graft. For this reason, courts tend to seek ways to mollify this effect–promissory estoppel, helpful discovery orders, etc.)
Statute of Frauds is an affirmative defense, and one, as you note, with lots of exceptions and carve-outs. I’ve handled a few dozen (guessing here) cases involving statute of frauds, and I’ve never done it that way or seen it done that way. The usual method is to file suit, wait to see if the defense even raises the argument, conduct discovery, and see where you are then. The trickier part is that some jurisdictions require a party basing a claim on a written instrument to attach a copy to the Complaint or Answer, whether or not the statute of frauds (or any of the other laws that require contracts to be written) applies. I’ve seen Complaints dismissed for non-compliance with these rules. Generally, these rules say you’ve got to attach the document or explain why you didn’t, so there is a way to do it, but for whatever reason, most of the time the rule gets ignored, and when someone files a motion, instead of amending the pleading, folks will just claim they don’t have to comply with the rule.
That’s exactly what I wrote earlier. It seems you are backing off your earlier assertion that “The allegations of the plaintiff will not count as a basic evidentiary showing on a motion to quash a discovery request”.
Actually in one case I’m thinking of the plaintiff found unrelated financial irregularities and leaked it to the press.
I don’t think “regularly-occurring” is the proper criteria.
It strikes me as odd that in a society in which people are concerned about suspicious cops searching people’s cars during traffic stops, people would routinely be granted legal access to other people’s most private information based on some possibility that they will find some info with which they can sue them. YMMV.
[Actually where it gets a lot more abused is in AGs suing huge corporations. It’s almost a sure-fire deal for an ambitious AG. He announces an investigation or lawsuit against some corporation and subpoenas all their emails. In the course of looking over the tens of thousands of them he inevitably finds some mid-level idiot trash-talking about how he did or is doing some blatantly illegal act. On this basis, he sues the company, promising leniency to the mid-level guy if he flips on the senior people, and also threatens to criminally indict the company, which results in a multi-million dollar settlement and great press for the AG. Works every time.]
When I was in clinic, we would move for dismissal when the debt collectors didn’t attach the contract/note to the complaint. Generally, they would file an amended complaint with an affidavit stating the document could not be found after a thoroughgoing search.
These contracts were not within the SoF but, like your jurisdiction, our local rules require, in all actions on writings, that the writing be attached to the complaint. These are, of course, separate issues (which is why the affidavit sufficed in our cases).
As to the joint effect of the rules, I suppose you could amend the complaint with the affidavit and then have the other side prove up their defense, so pre-filing discovery isn’t absolutely necessary (though it does sometimes occur) nor are the more exotic case theories.
Not really. You will have to prove to the judge why it is likely that the discovery will assist you in the accumulation of admissible evidence, and the judge will require more than your avowal that it will. Think of it this way: the standard is the proposition that you have to prove (this discovery will assist me in collecting relevant, admissible evidence and there are no less intrusive ways of doing so), the burden of proof is the quantum of evidence you have to bring (which here will be more than just “here’s my side of the story”).
But it’s trivial to come up with a justification that will allow you to do this. I gave an example before in which you allege child abuse and claim you need to search for kiddie porn on his computer. If you think that won’t do it, claim that the plaintiff forced you to look at his stash of kiddie porn when he abused you. Whatever. It’s not hard to imagine a type of information that might support some type of claim, and you make sure that your claim is aligned with what you want to see.
I’m not claiming you can get every single thing that you want. But you can certainly get quite a lot. (In the PJ case, her lawyers asked for info about doctors who had examined BC’s private parts, but I don’t know if they got it.)
I don’t have personal experience with pre-litigation discovery, but I think it’s usually done by defendants expecting to be sued more than plaintiffs expecting to sue.
One case I was involved with where pre-litigation discovery may have been helpful was one where my client borrowed and allegedly injured another person’s horse. The owner of the horse sent a pre-litigation demand letter claiming the horse was injured but noted he was attempting rehabilitation. By the time the owner filed suit, the owner had claimed the horse could not be rehabilitated and he donated the horse to the local university who then sold it at auction.
Had I gotten into the case sooner, I probably would have considered pre-litigation discovery to get a vet to look at the horse while it was still undergoing rehabilitation in the owner’s possession.
Pre-litgation discovery may be a good idea if you expect litigation, especially as a defendant, and the evidence is potentially unstable or gone by the time litigation arises.
[No pun intended regarding “unstable” horse]
But the point is that you need more than just a barely-possible theory. You need a theory that can convince a judge that it’s worth the hassle and intrusion to the defendent.
In PJ’s case, the point made above is that the judge didn’t grant discovery based just on PJ’s say-so. There was already at least some existing evidence to back up her story.
So if you sued Joe Random for molesting you twenty years ago and asked a judge to let you comb through his computer, the judge would say “What evidence do you have that Joe Random did in fact molest you? Because (taking into account the believability of you and Joe Random) in my considered judicial opinion, your word alone isn’t enough to grant your request.”
Now if you had testimony from people that say you told them about the molesting at the time, twenty years ago, and other people have testified that Joe Random molested them, then the judge might decide that is enough evidence to allow the case to go forward, even though it’s not enough evidence to win the case right then.
You’d still then have to provide a decent reason for wanting to comb through his computer. I suspect if there’s evidence of molesting children in the past, the judge might think that looking for kiddie porn on his computer is reasonable. But if you were suing Joe Blow for, say, not paying you back wages, the judge probably would not think that looking for kiddie porn would help your case.
Is that understandable?
It’s very understandable, but factually suspect, and partially irrelevant.
We’ve covered most of this already - see the prior posts.
Apparently the issue I raised here is the subject of a recent pivotal SCOTUS ruling. From the NYT: