Day on Torts
What burden should be placed on a party seeking a new trial if the losing party discovers that the winning party engaged in deliberate discovery misconduct? In Duart v. Dep’t of Correction, No. 18476 (Conn. Jan. 24, 2012), the Connecticut Supreme Court said the movant must establish the following:
(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a reasonable probability that the result of the new trial will be different.
A‘ ‘reasonable probability’ ’’ means ‘‘’a probability sufficient to undermine confidence in the ‘outcome’’ or, in other words, that ‘’the favorable evidence could reasonably be taken to put the [whole case in such a different light as to undermine confidence in the verdict.’’" [Citations omitted.]
The plaintiff in the case sought a lesser standard, saying that she should only have to prove "that the misconduct substantially interfered with [her] ability fully and fairly to prepare for, and proceed at, trial.’’ The Court rejected that argument, saying that
Not requiring the movant to prove a different result would invite endless litigation and deplete judicial resources. Given the breadth of discovery in modern trial practice, it is inevitable that the movant could find some fault with the other party’s compliance with broadly phrased discovery requests. If we obliged the nondisclosing party to prove harmlessness every time the moving party claimed that the nondisclosure constituted misconduct, we would impose an insupportable burden on the nonmoving party to disprove amorphous assertions, as in the present case, that the ‘‘entire case would have gone differently . . . .’’ Requiring a showing of a different result serves as a means of differentiating those cases in which the nonmoving party’s alleged misconduct materially affected the resolution of the underlying case—and in which, accordingly, the increased burden and expense is thereby warranted—from those cases in which re-litigation would be a pointless exercise.
It is important to note that the Court never reached the question of whether there was deliberate discovery misconduct by the defendant.