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THE LATITUDE FOR DISCOVERY

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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