Remedies for missing discovery What happens, or what remedies are offered to a plaintiff, when a defendant in a civil action does not provide complete discovery? Suppose: The plaintiff requested discovery of &quot;all emails sent by defendant pertaining to subject X&quot; 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, &quot;Sorry, that was an honest oversight. We reviewed our material and believe that's the only thing missing from our discovery.&quot; (An astute plaintiff might have held another relevant document in reserve, and could now produce that one, and the defendant could respond, &quot;Oops, I did it again. Honest mistake.&quot; 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, &quot;The defendant concealed material evidence. Falsus in uno, falsus in omnibus.&quot; Does that apply? For example: Does the plaintiff then get a presumption that all facts that could have been supported in discovery are sustained?
The answer depends on the jurisdiction, as always. But under the Federal Rules of Civil Procedure, which are the model for most American courts, there are all kinds of potential sanctions for discovery violations. Rule 37(b): If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. But the court will not move directly to imposing sanctions against the offending party. Instead, the rules require the aggrieved party to raise the issue privately and attempt to resolve it without court intervention. If that is unsuccessful, the court may issue an order compelling discovery. Rule 37 sanctions are generally only available if the offending party then fails to comply with that order. Separate from Rule 37, though, the court also has inherent authority to impose sanctions for litigation misconduct, but you can usually expect it to limit itself to Rule 37 protocols. Most judges don't want to hear about discovery, so they are happy to force people through the informal resolution process first.
There are a few problems with your line of reasoning, but the main one is that if the government can't locate a defendant, California's Rules of Civil Procedure provide a variety of alternative means of service. When all else fails, the government can serve the defendant &quot;by publication,&quot; meaning that they simply publish a notice of the lawsuit in a newspaper. If the defendant fails to appear to defend the suit after service by publication, the court will enter default judgment, the government will seize the property, sell it, and use the resulting revenue to continue operating.
(My expectation is that the proof has to be replicated and the conviction cannot be introduced as evidence). Your expectation is incorrect. The name of the legal doctrine that allows a criminal judgment to have this effect in a civil case is called "collateral estoppel" which is also sometimes called "issue preclusion". See, e.g., A-1 Auto Repair &amp; Detail, Inc. v. Bilunas-Hardy, 93 P.3d 598, 600 (Colo. App. 2004) ("Hardy contends Colorado law does not allow courts to apply collateral estoppel, now commonly known as the doctrine of issue preclusion, when the first adjudication is criminal and the subsequent litigation is civil. We disagree.") Similarly, a case out of California stated: To preclude a civil litigant from relitigating an issue previously found against him in a criminal prosecution is less severe than to preclude him from relitigating such an issue in successive civil trials, for there are rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt and of a unanimous verdict, the right to counsel, and a record paid for by the state on appeal. Stability of judgments and expeditious trials are served and no injustice done, when criminal defendants are estopped from relitigating issues determined in conformity with these safeguards. Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 606, 25 Cal.Rptr. 559, 375 P.2d 439, 441 (1962) (citations omitted). To the best of my knowledge, this is the rule in every U.S. jurisdiction (with the possible exceptions of Puerto Rico and Louisiana which are not common law jurisdictions). It is also the historical rule in British common law, although I don't know if this continues to be the case in non-U.S. jurisdictions. Procedurally, the determination that collateral estoppel applies would usually be made on a motion for summary judgment, or in the preparation of jury instructions which state that liability has been established and that the jury is to limit itself to determining causation and damages, rather than as an evidentiary matter. I've used this doctrine once or twice. For example, I used it in a case where someone fraudulently sold ditch company shares worth several hundred thousand dollars (in Colorado, water is gold) that he didn't own (a transaction that could not be unwound because the buyer was a bona fide purchaser for value and the seller had apparent authority as a trustee of a trust owning the shares even though he didn't have the actual authority to sell them under the trust) and then spent the money he received before he was discovered (if I recall correctly, for gambling debts). He was convicted criminally and then my client, the victim, sued for money damages including statutory treble damages for civil theft and attorney's fees based upon collateral estoppel and an affidavit as to damages in a motion for summary judgment. From a practical perspective the four main difficulties are that (1) people convicted of crimes often lack the income or assets to pay judgments, (2) there are double recovery issues involved in reconciling restitution awards in a criminal case (where the measure of damages is narrower) and damage awards in a civil case (where the measure of damages is broader), (3) there are priority issues involved in reconciling criminal awards for fines, restitution and costs, in each case with civil awards for damages, and (4) if the defendant declares bankruptcy, the non-dischargeability of the civil judgment must be affirmatively raised and proved (often this is elementary but there are strict time limits) in the bankruptcy proceeding. Tactically, it is often better to sue first, collect what you can, and to bring a criminal complaint only when it turns out that the perpetrator is judgment-proof.
The simplest method is to demonstrate the falsity of the claims: this is simpler than pursuing punitive action against the opposition because in addition to demonstrate the falsity of the claims, you have to demonstrate willfulness and deceitfulness of the oppositions actions. In reading appellate decisions, you will often encounter statement by the higher court that the losing part urges so-and-so, or that the lower court applied a law or doctrine incorrectly, and they explain why that is in error. Such snippets are an excellent model for rebutting incorrect legal claims, although they are usually just the "executive summary" of the refutation. If one side cites Bronston v. United States, 409 U.S. 352, Wickard v. Filburn, 317 U.S. 111 and Romer v. Evans, 517 U.S. 620 as case-law support for the proposition that courts should defer to the interpretation of government agencies whether the agency's answer is based on a permissible construction of the statute, so long as Congress has not spoken directly to the precise issue at question, a refutation would draw on those decisions to show that the three citations do not support the proposition (in my example, it would be unnecessary to do this because it is patently obvious that this is a wildly irrational argument, but many cases depend on a deeper reading of the case law). Rather than focusing on accusations of gibberish, you could focus on establishing the lack of legal merits behind the opposing side's claim.
We can assume there was a meeting of the minds when the contract was drafted, and both parties expected payments to me made based on product usage. Plaintiff alleges that this did not happen. Thus plaintiff is indeed alleging that the contract was breached. Now plaintiff alleges that defendant broke the contract, while defendant counters that plaintiff broke the contract. "[T]o be determined by tracking software" is woefully ambiguous. The court will want to know which party drafted the contract, as disputes arising from ambiguity are often resolved in favor of the non-drafting party.
In a typical divorce proceeding, both sides are required to provide a sworn statement of their finances, and to respond to written interrogatories, produce documents (e.g. financial statements made in loan applications, balance sheets, tax returns, bank statements, and copies of deeds and certificates of title and stock certificates) and be deposed in pre-trial discovery proceedings. Divorce lawyers have the authority to subpoena third-party records custodians and to take a small number of depositions of third-party witnesses prior to a permanent orders hearing and can usually get permission to take more if there is evidence suggesting that it would be fruitful to do so. There are a variety of sanctions that may be imposed for failure to cooperate, including adverse inferences regarding the facts that would have been disclosed if there had been disclosures in the discovery process. Still, it behooves a client to know as much as possible before commencing the process, since having lawyers gather this information during the course of divorce litigation is expensive and isn't always perfect. Where misconduct is suspected, a spouse's lawyer will typically retain forensic accountants and/or private investigators and will compare bank and accounting and tax records with other public records such as real property records, corporate records and tax filings. Unless an asset has produced no income or expenses flowing through a personal or business account, it will usually show up somewhere. Spouses will also often have familiarity with where to look based upon living with a spouse and often will have obtained copies of relevant correspondence or documents to provide a lead - perhaps a letter asking a spouse to fill out corporate paperwork or receipt from a foreign bank account. This investigation process (collectively called discovery) usually takes place between the filing for a divorce and the half year or more later when a permanent orders hearing is held. Often, in complex cases and cases where there is a likelihood that assets have been hidden, the final hearing will be set later after the original filing than it would otherwise be, and the planned hearing will be longer in light of the evidence that will need to be produced at that time. In my state, a spouse has up to five years after a divorce to reopen a proceeding is undisclosed assets are discovered. It isn't impossible to hide assets in a divorce, but it isn't easy either.
Although there have long been requirements to disclose certain types of defenses -- alibi, insanity, etc. -- common law jurisdictions have more recently moved in the direction of greater disclosure obligations for the criminal defendant. Virtually every jurisdiction now requires the defendant to disclose his witnesses and his evidence to the prosecution at some point before the trial, at least if the defendant has made discovery demands of the prosecution. For more information on common-law discovery rules, see here.
A motion to dismiss sets no precedent Whether it succeeds or not, it does not result in a judgement on the merits, it is simply an analysis on whether the case as pleaded shows the defendant has a case to answer. The case would have to go to trial, have a judgement issued (i.e. not settle), and await the result of final appeals (if any) before it would be considered precedent. As to your final question Is it considered intellectual property theft to capitalize on synthetic datasets produced by OpenAI's LLMs? No one knows. Hence the lawsuit.