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By: Jennifer Adair
Sanctions for discovery abuses are not a weapon reserved for the plaintiff, and defense attorneys should not shy away from pulling this arrow from their quiver when misrepresentations by the plaintiff are so egregious that a vigorous cross-examination at trial simply will not suffice. Rather, defendants should consider whether to petition the court for the relief necessary to obtain a just result.
In two recent automobile accident cases in Georgia, our firm encountered plaintiffs who claimed both in written discovery and in depositions that they never experienced prior similar injuries. Through the diligent pursuit of medical and claim records, we uncovered that both had extensive relevant medical histories – even to the extent of surgery! – which they concealed from the defense. Not only did the plaintiffs misrepresent their medical histories, but they failed to disclose those providers whose records would expose their dishonesty. Those deceptions went to the very heart of the case – whether the motor vehicle accident at issue was the cause of the injury alleged.
Time after time, courts have authorized sanctions for false and misleading discovery responses, up to and including striking the pleading of the offending party. The courts have recognized that a false discovery response is graver than a total failure to respond because the other party may never learn that the response it received is false. Counsel should carefully consider the issues faced in each case, and the laws of each jurisdiction, to craft proposed sanctions that address the specific harm caused by the plaintiff. In the examples above, we requested, in the alternative:
In both matters, we were successful in persuading the trial court to preclude the plaintiffs from giving any testimony or other evidence of any condition for which they lied about prior treatment. In effect this prevented each from offering evidence of or obtaining any recovery whatsoever for multiple surgeries. The remedies available in other jurisdictions vary, but the policy reasons for awarding such sanctions hold consistent. Similarly, while a personal injury case more frequently lends itself to similar dishonesty, the obligation to provide truthful discovery responses is universal and sanctions should be considered as a strategy any time the opposing party lies.
Faced with a dishonest plaintiff, defendants and their attorneys should carefully consider which cases are appropriate for requesting sanctions. Cases involving a legitimate misunderstanding or a highly nuanced discrepancy are unlikely to evoke a harsh response. Further, if the plaintiff is not aware that the defendants have learned he was dishonest, there may be a strategic advantage to saving the information for use at trial as impeachment so that the plaintiff will not have an opportunity to get his story straight. Seeking sanctions is a strategic decision for attorneys and their clients, but can be an important tool in combatting the unscrupulous plaintiff.
For more information, please contact Jennifer Adair at [email protected].