Using opposing parties’ evasive discovery responses against them

Posted Tuesday, February 9th, 2016 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Often opposing parties will respond to discovery with evasion: giving answers that respond to some, slightly different allegation; providing lengthy responses to “yes/no” questions without really stating “yes” or “no”; citing a lack of knowledge to answer a question that, given their litigation posture, they really should be able to answer.

The Rules of Civil Procedure treat such responses as failures to respond and provide remedies for such unresponsiveness. Rule 37(a)(3), SCRCP explicitly states “an evasive or incomplete answer [to discovery] is to be treated as a failure to answer.”

In theory one could file a motion to compel when one receives evasive discovery responses. However often such evasive responses are useful–perhaps even more useful than an accurate and non-evasive response. Sometimes the responses are evasive because the other side doesn’t want to acknowledge his or her weaknesses or the other party’s strengths. At trial one can cross-examine the other party on such evasive responses to not only attack that party’s credibility but to make that party seem immature or churlish.

Other times, the evasion is intended to prevent the party issuing discovery from pinning the answering party down on the information being sought: basically a response that indicates a lack of knowledge without actually stating “I don’t know.” Often such a response is issued when the answering party should know the answer but the answer might hurt that party’s case. However, at trial, that party is now committed to a “non answer” answer. If there’s a factual dispute where the issuing party “knows” the answer, the answering party can’t challenge it.

Parties and attorneys issuing evasive discovery responses may think they are being clever but they are actually limiting their input on contested issues at trial. Recently, in a common-law marriage case being litigated in Probate Court, my client was granted summary judgment, in part, because the party claiming common-law marriage was evasive in answering discovery questions in which she should have known the answer. Her ability to survive summary judgment depended, in part, on having knowledge of the information sought in discovery. Since her evasive responses indicated a lack of knowledge, she couldn’t prove the requisite knowledge of the removal of an impediment to marriage. Non-evasive responses wouldn’t have helped her at trial but might have enabled her to survive summary judgment.

Evasive discovery responses may prevent the other side from learning information harmful to one’s position. If the information is vital one can always file a motion to compel. However it it often better strategy to simply accept the evasive response and use it to attack the other party’s credibility or limit the other party’s testimony and evidence at trial.

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