Attorneys do not have an obligation to develop and present fully the facts of a
lawsuit. Because of this institutionalized obfuscation, there are elaborate
rules that determine what facts may be presented to a jury and how these facts
must be presented. Many of the facts developed in a case may not be presented
to the jury because they are inadmissible. The test for whether a party must
give a particular piece of information to an opponent is whether that
information will be admissible itself or whether it may lead to admissible
information.
The latitude for discovery is very broad. The trial judge controls the
discovery in a case through the discretion granted in the rules of procedure
for his or her jurisdiction. In theory the judge should be involved in
discovery only in the rare situation of a request for information that is not
admissible and has no chance of leading to admissible information. In practice
it is not unusual for attorneys to contest every discovery order to
inconvenience the opposition. This dilatory practice is commonly used by
defense attorneys in medical malpractice litigation to deplete the plaintiff's
resources.
In exercising discretion to control the discovery in a case, the judge looks
for the relationship of the requested information to the facts that are
necessary, either for the plaintiff to establish a prima facie case or for the
defendant to rebut the plaintiff's allegations. Discoverable information in a
medical malpractice case would include all of the plaintiff's medical records,
information about the plaintiff's lost wages, the defendant's medical records
if there were allegations of incapacity to practice medicine, various hospital
records that would reflect on the treatment rendered the plaintiff, and so
forth. Protected information would include the defendant's tax forms, peer
review documents protected by statute, business records that did not bear on
the issues in the case, and other matters that are not part of the plaintiff's
prima facie case. Discovery might be contested in areas that are generally not
relevant to a medical malpractice case but are at issue because of special
questions raised by parties. For example, if the plaintiff pleads that the
defendant lied about the risks of a treatment because the defendant was getting
a kickback from the hospital to induce patients to have the treatment, then
contracts and other information about the relationship between the defendant
and the hospital might become discoverable.
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