Wade Clark Mulcahy LLP

Discovery in a legal case is the pre-trial process where both parties exchange relevant information, documents, and evidence, making it essential for developing a strong legal strategy, identifying key facts, and ensuring a fair trial. This exchange can take months or even years, prompting courts to issue discovery scheduling orders that establish time frames. More often than not, dates are not set in stone and attorneys will consent on moving those dates around, and that’s the usual practice even if the dates surpass a year from the original date.

Although there may be repercussions for extending deadlines or missing them, courts typically prefer compliance over intervention. Discovery disputes rank low on the court’s priority list, so as long as parties eventually adhere to the order, courts are generally satisfied.

However, that’s not the case for conditional orders. If a party completely disregards the date on a conditional order? It’s game over.

Effective discovery is critical in any legal case. Missing deadlines or failing to provide required documents can severely weaken your position, leading to strict sanctions or even the exclusion of crucial evidence. A stark example of this is found in Anthony Marzilliano v. Place to Beach, where the plaintiff sought damages for injuries sustained during an altercation while leaving the bar operated by Place to Beach. After serving discovery demands, the defendants were ordered on August 20, 2021, to respond within 30 days but failed to do so.

On May 19, 2022, the Supreme Court issued a conditional order mandating the defendants to respond to all outstanding discovery requests within 20 days, warning that noncompliance would result in preclusion from offering evidence, testifying at trial, and submitting affidavits in response to dispositive motions. The defendants still did not respond within the 20 days.

In August 2022, the plaintiff moved to preclude the defendants from presenting any evidence or testimony at trial due to their failure to comply with the conditional order. The Supreme Court granted this motion on September 23, 2022, leading to an appeal by the defendants.

Once a conditional order of preclusion is issued, it becomes absolute if not complied with by the specified deadline. A defaulting party must demonstrate a reasonable excuse and a potentially meritorious defense to be relieved from the order, which the defendants failed to do in this case. Defendants missed the window to comply within 20 days. As a result, the Supreme Court rightly precluded them from presenting evidence or testimony at trial, and from submitting affidavits in response to dispositive motions. The defendants’ game was over, and the plaintiff won without needing to go to trial.