Law Lessons from GEORGE R. SZYMANSKI V. HARRIS C. LEGOME, ET AL., App. Div., A-3158-08T2, February 25, 2010:

“Concealment and surprise are not to be tolerated in a modern judicial system.” Lindenmuth v. Holden, 296 N.J. Super. 42, 52 (App. Div. 1996) (quoting Myers v. St. Francis Hosp., 91 N.J. Super. 377, 385 (App. Div. 1966)), certif. denied, 149 N.J. 34 (1997). “Our procedures for discovery are designed to eliminate the element of surprise at trial by requiring a litigant to disclose the facts upon which a cause of action or defense is based.” McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370 (2001); see also Liguori v. Elmann, 191 N.J. 527, 570-71 (2007).

These basic principles are “designed to ensure that the outcome of litigation shall depend on its merits in light of all the available facts, rather than on the craftiness of the parties or the guile of their counsel.” McKenney, supra, 167 N.J. at 370; see also United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 986-87, 2 L. Ed. 2d 1077, 1082 (1958) (holding that modern discovery rules are intended to “make a trial less a game of blindman’s [bluff] and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent”); Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 467 (1998) (Pollock, J., concurring) (observing that “[m]odern litigation is too time consuming and expensive for courts to tolerate discovery abuses. For over fifty years, courts have endeavored to transform litigation from a battle royal to a search for truth”). As a result, when there is a “material variance between the answers to interrogatories and the proofs attempted to be adduced at the trial,” where the “variant data was or should have been known to the answering party” prior to trial, and “where there has been no amendment of the answer given in the interrogatory to include the new data,” Branch v. Emery Transport Co., 53 N.J. Super. 367, 374 (App. Div. 1958), a trial judge may exercise his or her wide discretion to impose an appropriate sanction that is “just and reasonable,” Lindenmuth, supra, 296 N.J. Super. at 52.

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