Legal Question in Intellectual Property in District of Columbia
Do I have to turn over a document used for impeachment?
I am a pro se litigant. I asked for a document in discovery that should have been under the exclusive control of the other party and the other side it said it does not exist.
I was able to obtain it legitimately, though their carelessness, and I can show that they should have known it existed. I want to use it at trial to impeach the credibility of their witness, showing that they either withheld discoverable evidence or were wantonly neligent in not searching for it. I also want to introduce it for other primary evidentiary purposes purposes. If they make a request for documents that might include this document, and I do not produce it, am I then barred from using it at trial?
I also have phone records showing calls between me and an opposing party. Do I have to produce those, even if the sole purpose of using them would be to impeach, i.e. if I say ''How much time did we spend on the phone?'' and they say ''Maybe an hour a month'' and I then produce records showing it was more like 10 hours a month? Can I withold those on the assumption that the witness will testify accurately, then use them only if she does not?
This is in an admistrative hearing before the Trademark Board, so it is under the Federal Rules.
2 Answers from Attorneys
Re: Do I have to turn over a document used for impeachment?
You have to turn over all documents responsive to proper discovery requests unless you can demonstrate that they are privileged. TX has a bit of a complicated procedure for claiming privilege; so you should read those rules and all the others so you don't lose your right to use documentary evidence. Ask yourself, "How would I want them to behave and act? and this will tell you how you should. Otherwise, you may try the judge's last bit of patience with a pro se litigant. You do know the saying about representing yourself? I wouldn't do it myself in part because you lose the appearance of objectivity when you don't have an attorney. You're dealing with federal statutes and the federal rules apply to the extend designated by the administrative procedural rulse of the TM Board.
Re: Do I have to turn over a document used for impeachment?
Under Florida law, the answer to your question in unequivocally yes, you must turn the documents over. failing to do so runs the very huge risk (and likelihood) that you will not be able to use them at trial.
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