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Game on? Judge not happy over discovery

Pretrial discovery can be a matter of strategy, and some lawyers even approach it as a game.

But one circuit judge in Norfolk isn’t pleased with what he saw as game-playing in a medical-malpractice case. In Oakley v. Warren, Judge Everett A. Martin Jr. reamed both plaintiff’s and defense lawyers, resorting to elementary school terms.

“If this case is representative of the way expert witness disclosure is usually handled in medical malpractice cases, the noble aims of discovery have been twisted into a grown-up version of hide-and-seek,” he wrote.

He castigated the plaintiff’s lawyers for not timely disclosing information, but defense counsel wasn’t blameless. The judge called a defense maneuver a “game of blind man’s buff.” The defense had proposed setting aside a number of days for depositions, but neither side would need to disclose names or specialties.

Ultimately, the plaintiff’s side lost this round, since the judge disallowed the use of their two belatedly designated experts. But the judge fired a parting shot at both: “In future cases, rather than delaying designations until the deadline and scheduling depositions in a ‘blind’ fashion I suggest counsel follow the rules and the scheduling order and try, instead, honesty and candor.”


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