Legal Opinion
In order to obtain discovery from the plaintiff, you need to file a Motion to Compel Discovery. In the motion, you should state why you want the court to grant you discovery. The court has discretion to allow or dismiss your motion if the grounds stated are not sufficient. If the judge grants your motion, the plaintiff will have no option but to provide you with the discovery you need.
The appeal process is not a new trial. It is an opportunity for you to show that the trial court made an error of law in deciding against you. It is important to note that you can’t introduce new evidence during an appeal. Ordinarily, it is assumed that the judgment of a trial court is correct. It is up to the appellant to prove that it is not correct.
If you want to use the discovery from the plaintiff, you can only use the evidence that plaintiff presented during trial. You will not be allowed to use new evidence.
In an appeal, there are 3 standards of review:
- Abuse of discretion standard – It applies if the trial judge used his discretion wrongly and gave an absurd ruling. This is usually rare.
- Substantial evidence standard – You will be appealing because you think the evidence brought by the plaintiff is not sufficient to warrant the judgment issued by the trial court. The appellate court will simply look at the evidence to see if is sufficient to warrant the trial court’s judgment.
- de novo standard – This is the most common standard and the one I would recommend for your case. The appellate court independently analyzes the case from the beginning, only considering evidence adduced at trial.
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