The Fourth Circuit Court of Appeals held that the party who failed to produce material pursuant to a discovery response is required to show that the information would not likely have made a difference in the trial”?s outcome. In Kurt West v. Bell Helicopter Textron, Inc., (1st Cir. 8-21-2015) 2014 WL 5176404 plaintiff was injured when a helicopter he was piloting crashed-landed. He sued the manufacturers of the helicopter and the defendants obtained a verdict. After the trial the plaintiff discovered that the defendants withheld discoverable information directly responsive to his document requests. The defendants first urged that they were not required to disclose the document because its disclosure was not required. However, the reviewing court found that the record supported a finding of culpable misconduct. However, the trial judge shifted the burden to the plaintiff to show that the withheld material would have likely made a difference in the trial”?s outcome. The court said that the district judge should have presumed that the defendants”? misconduct substantially interfered with West”?s trial preparation and required the defendants to prove by clear and convincing evidence that the withheld material was inconsequential.
The court said:
“On remand, should the district court in fact determine that additional documents within the defendants”? possession were responsive to West”?s first set of Requests for Production, this record supports a finding of culpable misconduct within the meaning of Rule 60(b)(3), thereby raising the presumption of substantial interference. Whether the defendants are able to rebut this presumption (if it arises) by clear and convincing evidence is a question on which we take no position.”