• August 13, 2010

On television, as the courtroom drama reaches its climax, the doors in the back of the courtroom bang open and, lo and behold, the key witness, long thought dead or nonexistent, radically alters the trial’s dynamics and outcome.

In the real world, such scenarios are anathema.  The proverbial “trial by ambush” is to be avoided at all costs and the rules of civil procedure are devised to preclude this impediment to the orderly administration of justice.  So the federal rules of civil procedure provide that, very early on in litigation, parties are to disclose who is likely to have discoverable information and what information, specifically, are they likely to have (“Rule 26(a)(1) initial disclosures”).  If they don’t disclose the evidence (without an excellent excuse like, for example, it did not exist earlier), the evidence may be excluded from trial.

It does not make for good television drama, but the harm to be avoided – trial by ambush – is real.  The remedy, however, presents some challenges.  If, for example, litigation is of a certain size or complexity, is it realistic early on that the lawyers should know all of the players and the substance of their knowledge?  If the lawyers cast a broad net, disclosing every person who might have discoverable information, how specific do they have to be in describing the nature of that information?  (And will they be charged with burying their adversary in an avalanche of excessive disclosure?)  The rule also includes a duty to supplement along the way, so lawyers, as the case proceeds, need to circle back and check their Rule 26(a)(1) disclosures and add to them or revise them.  How often? How detailed?  And what if they don’t? Even when the other side already knows of the new witness(es) or evidence? Or should know?

Plaintiff Cannon Technologies, in a case pending before U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.) has strenuously objected to Defendant/Third-Party Plaintiff Sensus Metering System’s filing of a declaration accompanying a reply brief in support of summary judgment.  The declarant was identified in Sensus’ 26(a)(1) “initial disclosures” but not the details in her declaration and Sensus takes the position that it has been sand-bagged.

The fight plays out like this:  Sensus, moving for summary judgment, argues that Cannon’s claims are barred by Sensus’ terms of sale.  Cannon, in response, argues that it never received those terms.  Sensus replies with the declaration supposedly as proof that Cannon did.  Cannon cries foul — to receive this evidence in reply and not to have had sufficient prior notice of this witness’ knowledge on this subject….

It falls to Judge Kyle to determine who is gaming whom here, if anyone, or if, on the other hand, this is simply one more example of the fallibility of a rules system built on a challenging premise of “no surprises.”

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