Misuse of Discovery or Deposition Procedures

Misuse of discovery or deposition procedures is a tort of abuse of process.  However taking ordinary steps in connection with taking, transcribing, and filing of a deposition is not an abuse of process. [i] In order to constitute the tort of abuse of process some definite act or threat that is not authorized by the legal process and an objective not legitimate in the use of the process is required.  In Rentea v. Rose,[ii] the court held that abuse of process in civil discovery may lie when: (1) the party who employs the process of a court specifically and primarily intends to increase the burden and expense of litigation to the other side; and (2) use of that process is not for the legitimate purposes of advancing the party’s interests in the ongoing litigation.

In order to constitute the tort of abuse of action there should be an ulterior purpose and an act in furtherance of such purpose.  A person making out a claim for abuse of process must allege a use of process for a purpose other than the intended purpose and must allege an act which itself corroborates the ulterior motive [iii] In Alexandru v. Dowd,[iv] an attorney obtained medical records of a former litigant through a valid method of discovery in tort action against the attorney’s client.  The court held that the attorney did not abuse process as the motion is not used in an improper manner but to represent client in a professional manner.

[i] Thornton v. Rhoden, 245 Cal. App. 2d 80 (Cal. App. 2d Dist. 1966)

[ii] 2008 Tenn. App. LEXIS 242 (Tenn. Ct. App. Apr. 25, 2008)

[iii] Young v. Motor City Apartments Ltd. Dividend Housing Asso. No. 1 & No. 2, 133 Mich. App. 671 (Mich. Ct. App. 1984)

[iv] Alexandru v. Dowd, 79 Conn. App. 434 (Conn. App. Ct. 2003)


Inside Misuse of Discovery or Deposition Procedures