My attorney tells me I must provide information to the other side in my civil suit and I don’t want to provide it, what should I do?
9 January 2024
Answer: Hand it over; or expect to face the consequences.
It is common for litigants to not want to share information with their adversary, but that is required under our system of law, at least for relevant and requested information. Mass. R. Civ. P. There are serious consequences for not turning over information and documents that are required to be.
For example, in the recent case of DMO Norwood, LLC v. Kia America, Inc. the United States Magistrate Judge assessed 50% of the requested attorneys’ fees, approximately $8K, against the plaintiff that refused to provide requested documents. 2023 U.S. Dist. LEXIS 217807 *11, Docket No. 22 -cv-10470-ADB (decided Dec. 7, 2023). The Magistrate Judge followed the applicable standard for the question of whether to assess attorneys’ fees, which includes the question of if the moving party attempted to obtain the information/document prior to filing the motion, if the refusal to produce was substantially justified, and if there were any other circumstances make an award of the fees unjust. Id. at *3. The plaintiff’s reasoning in not producing the documents was just a legal position taking on the entire defendant’s counterclaim itself, which had already been ruled upon. That didn’t satisfy the Magistrate Judge as substantially justified.
Another consequence of not providing requested and relevant information and/or documents to the adversary is that you likely will not be able to use that information or document not provided. In FabriClear, LLC v. Harvest Direct, LLC, Harvest Direct failed to provide a report that it wanted to use at trial until well after the deadline to provide discovery to their adversary. 2023 U.S. Dist. LEXIS 208299, Civil Action No. 20-10580-TSH (decided Nov. 21, 2023). The court applied Rule 37(c)(1) of the federal rules of civil procedure and found Harvest Direct could not use the report at trial. Id. at. 4-8.
A litigant can be sanctioned in other ways at trial, such as having a fact detrimental to your case determined established or other topics not permitted to be presented. Section 103(g) of the Massachusetts Rules of Evidence states in pertinent part “nothing . . . precludes a court from excluding evidence as a sanction for a violation of a discovery rule, order, or other obligation imposed on a party.” Section 119 of chapter 231 of the Massachusetts General Laws also essentially states that a court’s error related to evidence is not grounds for modifying a judgment “unless [an appellate court] finds that the error complained of has injuriously affected the substantial rights of the parties.” In other words, a judge can sanction a litigant in many ways to balance out the harm caused by the failure of a litigant to play fair and provide required information. And it will be a tough trip to the appeals court to try and undue the court’s actions.
On the other side of the equation, keep in mind, at a minimum, the information or documents generally have to be relevant, requested, or required to be produced. So, you can share information unnecessarily.
Overall, the tension experienced in the process of providing information and documents to your adversary in a civil case is a common issue that must be addressed properly. In the event you are facing a similar situation, feel free to give this office a call.