A ruling compelling pretrial discovery or production/disclosure or a preclusion order may well mean the difference between winning and losing a lawsuit.
Such a motion offers the chance of protecting sensitive material from disclosure while at the same time avoiding the all-too-grave risk of a preclusion order.
The Second Department concluded that the preclusion order was properly served and had taken effect.
(145) The court noted that the record lacked an adequate basis "for the exercise of the court's discretion in opening plaintiffs' default under the preclusion order." (146) No facts "establishing an excusable default for plaintiffs' inordinate delay in serving the bill of particulars" or "showing the merits of the action" were set forth.
On appeal, Harris argued that the
preclusion order violated his constitutional right to present a defense.
Noteworthy, however, despite the egregious nature of the violation, a
preclusion order was not issued, and no claims were dismissed.
Preclusion orders would require a finding that other litigation would interfere with the federal court's management of the case, and the draft proposal would let the federal court "coordinate with the state court or stay the federal action to avoid inefficiency and conflict." (28)
