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State v. United States Steel Corp.6/24/1996
13, 1993, during USX's case in chief, one of USX's witnesses, Robert Schmitt, attempted to use four technical reports that fell within the scope of the state's discovery requests, but had not been produced by USX. The state objected to Schmitt's reference to or use of these reports, and the court sustained the state's objection, ruling that USX "failed to produce in identical form a document or documents which were subject of discovery before trial" and that USX "knew or had reason to know that the differences in the documents were material."
Thereafter, Ronald Flucker, a former USX employee , contacted counsel for the state, and, on September 1, 1993, provided the state with twenty-two items of internal USX correspondence dated in 1975 that had either not been produced by USX or apparently had been produced by USX in a different, less "questionable" form. The state argues that these developments, revealed during trial, clearly demonstrate that USX was derelict in its discovery obligations and that, even if the documents learned of during trial did not aid the state's case to the point where this court could conclude that the trial's result would have been different had the state been able to incorporate the evidence in its case, USX's proven discovery violations strongly suggest that USX had withheld other evidence, of which the state is still unaware, favorable to the state's case.
The state, however, did not attempt to call Flucker as a witness in its rebuttal case, nor did it attempt to bring to the court's attention in any fashion the documents provided by Flucker. Instead, it waited until after the jury returned an adverse verdict and then moved for a new trial based on USX's misconduct. The trial court denied the motion, holding that the state
failed to show that any discovery abuse was of such a nature or magnitude as to justify a new trial. The proof submitted indicates that the result would not have been different. The jury's verdict is supported by substantial evidence. . . . Moreover, the State's objections are untimely. The State's failure to move for a mistrial during the proceeding suggests that the State waived any questions relating to an alleged discovery abuse.
USX argues that, even if it could be found to have violated its discovery obligations, the state's objections to the "new" evidence -- the documents sought to be used by Schmitt and the documents provided the state by Flucker -- were untimely. We agree.
The state does not dispute that it did not object or otherwise attempt to seek relief prior to the jury's deliberations, whether in the form of a motion for a mistrial, for more discovery, or for an investigation into the extent of USX's alleged nondisclosure. Instead, it argues that USX's proven failure to disclose requested documents was a "gross inJustice" that deprived the state of its ability to adequately prepare and present its case. The state contends that it was effectively unable to have USX's misconduct "cured" prior to the jury's deliberations because: (1) it had already presented its case; (2) a mistrial would have required the state to start anew, incurring extensive litigation expenses, risking the loss of key witnesses, and giving USX a second chance to prepare a better defense; and (3) even if additional discovery had been allowed, any new evidence would have had to have been presented out of order.
Each of the state's reasons, however, ultimately amounts to strategic decisions that should not provide it any relief from its obligation to preserve its objections to USX's misconduct, so as to provide a viable basis for seeking the grant of a new trial. As the ICA has noted in an analogous situation:
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