August 15, 2020

What Information Is Discoverable in a Personal Injury Case?

In a personal injury case, discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. Admissibility at trial is not a prerequisite. Public policy favors discovery. Any doubt is generally resolved in favor of permitting discovery, especially when the issues in the case are not clearly established.

The fact that the party seeking information does not know precisely what s/he seeks, but is attempting to obtain all possible information for the purposes of the case (i.e. on a “fishing expedition”), is no basis for holding, per se, that a discovery request is improper. Discovery of all relevant material during the time of preparation is the aim. Discovery intends that each party shall divulge the information in the party’s possession. Though, the method of “fishing” may be improper (i.e placing the burden and cost of supplying information equally available to both solely upon the adversary).

One limitation on the scope of permissible discovery is that the information sought be not privileged.

Where any of the following apply, information is absolutely protected from disclosure in a personal injury action. The court cannot weigh or balance the privilege against the need for the information sought.

• Self-incrimination
• Attorney-client
• Spousal communications
• Physician-patient
• Psychotherapist-patient
• Educational psychologist-patient
• Clergyman-penitent
• Sexual assault victim and counselor
• Official records

The following information receives only qualified protection from pretrial discovery. Disclosure may be compelled if the court finds the interest of justice in obtaining the information outweighs the interests sought to be protected.

• News reporter’s sources
• Official information
• Police personnel files
• Trade secrets
• Attorney work product

As to objections made during a deposition, which is a witness testimony outside of court, all objections made are to be recorded by the deposition reporter. However, an objection does not excuse the deponent from the duty to answer, unless the objecting party demands that the deposition be suspended to permit a motion for protection. This is why the attorney who defends the deponent usually may not do much except take notes. When there is a protective order motion, the deponent answers the question, and the testimony is received, subject to the objection. If the testimony is offered at trial, the court will rule on the merits of the objection.

Although not prohibited by statute or case law, an attorney who instructs a deponent not to answer a question may violate standards of professionalism. The federal rules prohibit instructing a witness not to answer except where necessary to preserve a privilege.

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