What happens, or what remedies are offered to a plaintiff, when a defendant in a civil action does not provide complete discovery?
- The plaintiff requested discovery of "all emails sent by defendant pertaining to subject X"
- The plaintiff actually has an authenticated copy of at least one of the defendant's emails pertaining to subject X
- The defendant did not include that email in discovery
In this scenario the plaintiff has evidence (#2) that the defendant failed to provide complete discovery.
If the plaintiff raises the missing evidence in court then the defendant could say, "Sorry, that was an honest oversight. We reviewed our material and believe that's the only thing missing from our discovery." (An astute plaintiff might have held another relevant document in reserve, and could now produce that one, and the defendant could respond, "Oops, I did it again. Honest mistake." Etc.) I don't see any way for a tribunal to distinguish between honest mistakes and intentional withholding of adverse evidence.
The plaintiff could argue based on a single relevant omission, "The defendant concealed material evidence. Falsus in uno, falsus in omnibus." Does that apply? For example: Does the plaintiff then get a presumption that all facts that could have been supported in discovery are sustained?