The Discovery Code has a special provision for questions about the identity and location of witnesses. When asked, we must provide a list of our witnesses, and we must supplement the list when we identify more witnesses. Despite the special provision, attorneys lose their mind and make ridiculous, bad faith objections to requests about witness identity. Most of those objections are a variation of, "Objection, this request is premature and will only be responded to in accordance with a scheduling or pretrial order." These objections beg the questions: What are you so afraid of? Do you know who your witnesses are? Do you know what they will say? Have you talked to them?
Oklahoma’s Discovery Code provides a basis for fees if the genuineness of a document or the the truth of a matter is not admitted upon request but is later proven to be true by the party requesting the admission. Okla. Stat. tit. 12 § 3237(D).
Effective Disclosure Practices
To maximize the value and benefits of early disclosure, the policies and ideas behind disclosure should be emphasized in our offices. For voluntary disclosure to be an effective part of a civil practice, the client should be informed about the process, and witnesses, documents and other evidence that may be used at trial should be identified early on. As more information becomes available, the voluntary disclosure policy should be continued throughout the case.
Frequently Asked Questions, Answered by Questions
No one else in my practice area does this, so why should I do it?
Is that a good enough reason? Why not do it? Contrast proactive evidence identification and production with the old school hide-the-ball tactics we've all encountered. Do discovery games add any value to any client's case? What risks are associated with spoliation and discovery hearings? Are you personally exposed to financial sanctions if you advise and encourage your client to hide evidence?
How do I justify this to my client when the other side is being deceptive and uncooperative?
It is true that the only potential downside is that you may not have an even playing field for some time in pretrial proceedings. Will your client be better served by engaging in deception just because the other side behaves badly? Ask yourself, how much money do you think your client wants you to spend pushing paper around that does not move the needle one iota closer to case resolution? Does your client benefit by working with you to gather evidence and prepare the case with the evidence accessible to you? Have you ever been dressed down by a judge for suspect behavior when the other side was the one engaging in truly bad behavior? Is it worth the risk?
What if I give advance notice of evidence and the other side files a motion in limine and the judge sustains the motion?
When do you want to know that the judge is skeptical of your evidence: before trial or during trial? Could a challenge to your evidence help you: a. rethink the evidentiary strength of your case, b. find a new angle for admission of the evidence, or c. think outside the box for other evidence to prove the same point? Don't the pretrial rules require evidence to be exchanged so the attorneys can work through admissibility issues before trial anyway?
Benefits of Disclosure
Voluntary disclosure helps shape the narrative of the case. To make effective advance disclosures, it is fundamental that you must know what the evidence is and have possession of the evidence. Early in the case, even in your first meeting with a new lead or client, start a preliminary list of witnesses and exhibits. This is the essence of being prepared. Voluntary disclosure thus signals that you have prepared and are working the case. Where one side is out-preparing and outworking the other, voluntary disclosure is a show of evidentiary strength: your side of the case is supported by evidence. Sometimes, but not always, opposing counsel will reciprocate and make disclosures. When this happens, both sides are better informed to negotiate and explore settlement. Since the Discovery Code and pretrial rules virtually assure that the evidence will be revealed in its entirety at some point anyway, disclosures help avoid the costly penalties associated with discovery games and spoliation claims. Many discovery disputes that make it to the courthouse involve finger-pointing and blame-shifting by both sides. When the other side is being obstructive, advance voluntary disclosure can eliminate the other side's ability to complain in kind. With advance planning and preparation, disclosure can lay the groundwork for informed negotiation and settlement, and, where trial is necessary, for the successful presentation of evidence to the trier of fact.