When lawyers investigate cases, one of the most important stages is the discovery phase. This phase allows the parties in a case to learn about witnesses and evidence that may be used during trial. Discovery tools will enable each side to ask the opposing party or parties questions about the case. Sometimes they include requests for documents.
Beasley Allen’s lead asbestos lawyer, Charlie Stern, says that discovery in asbestos cases can be frustrating. He often finds that defendants object to certain questions or do not give complete answers, which slows the case-building process. Also, defendants often refuse to produce requested documents.
Advice to Asbestos Lawyers
Charlie advises lawyers to review discovery responses soon after receiving them. The responses may refer to stored documents that will be produced only if requested. If lawyers fail to read responses, they may miss significant evidence that could be vital to a case.
Further, Charlie encourages lawyers to be aggressive in fighting defendants’ objections because the objections may be invalid. If improper objections are spotted, good lawyers will write “dirty letters,” also called “deficiency letters,” pointing to basic discovery rules to show why the evidence should be produced. The letters will become even more critical if lawyers must file a Motion to Compel later.
Discovery Examples in Two Recent Asbestos Cases
Charlie wrote letters in two recent mesothelioma cases to request information a second time. In the first case, he asked for information about the defendant’s experts. He wanted to know how much the defendant paid the experts, how often the defendant hired the experts, and some other essential information. Charlie’s letter in the second case requested information about a defendant’s argument that it did not hold liabilities disputed in a case.
Charlie says he knew that the defendant in the first case did not want to provide information about its experts. After several letters and meetings, the defendant finally admitted this, forcing Charlie to file a Motion to Compel. Because most courts do not like discovery disputes, Charlie filed evidence of all his prior attempts to get the information from the defendant. He wanted to show the court that he had tried to get the information without its help. He explained that he needed the information for his case theme, which was discoverable under the court’s rules.
In the second case, Charlie had a different strategy. He believed the defendant had no basis to say it did not hold liabilities.
“In that situation, having them admit that they did not have facts, documents or testimony for this belief was as important as them producing any of that information,” Charlie said. “By forcing their hand to admit that they did not have any of that material, it made it clear that their belief/argument was speculative and based on nothing.”
Charlie did not have to file a Motion to Compel in the second case.
In both cases, Charlie knew the theme he wanted to use at trial and made his discovery requests based on that theme. When the defendants refused to respond, he boldly went after the information he wanted.
“It is critical that prosecuting attorneys utilize the law as a sword, when necessary, and force the defendants to provide us with the information we are entitled to,” Charlie said.
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