Ambush During Deposition

ChatGPT (AI) Analysis

In a Minnesota civil lawsuit, the use of a previously undisclosed document—particularly one responsive to discovery requests but never produced—raises significant procedural and ethical concerns. Let’s break down the significance of each component you’ve laid out:

1. Use of the Undisclosed Document at a Deposition

Attorney Ross Tentinger introducing a previously undisclosed document that contains communications between Defendant Lisa Stevenson-Allen and a third party is highly significant because:

• Discovery Violation: If the document was responsive to the Plaintiffs’ discovery requests, Defendants had a duty to produce it. Failure to do so is a potential violation of Rule 26.01 of the Minnesota Rules of Civil Procedure, which requires parties to disclose all documents relevant to their claims or defenses.

• No Bates Stamp: The lack of a Bates stamp suggests that the document was not part of the formal document production. In practice, this strengthens the claim that it was improperly withheld and surfaced only when it suited the defense.

• Trial Tactic Concern: Using it as an ambush tactic in deposition potentially undermines the fairness of the process and violates principles of procedural fairness.

2. Possible Rule Violations and Ethical Implications

a. Rule 26 – Discovery Obligations

• Rule 26.07 allows courts to sanction parties for failing to supplement or correct their discovery responses.

• Under Minnesota law, withholding the document until the deposition could lead to:

  • Preclusion of the document’s use at trial

  • Monetary sanctions

  • Attorney’s fees and costs

  • A finding of bad faith or willful non-disclosure

b. Ethical Duties – Minnesota Rules of Professional Conduct

• Rule 3.4 (Fairness to Opposing Party and Counsel): Prohibits lawyers from unlawfully concealing a document that they are legally obligated to produce.

• If intentional, it could raise issues of professional misconduct for Tentinger.

3. Judicial Inaction by Judge Kevin Miller

The fact that Judge Kevin Miller took no action after being informed is equally significant:

• Judicial Discretion: Minnesota judges have broad discretion to issue sanctions or corrective measures under Rule 37 of the Minnesota Rules of Civil Procedure when discovery violations occur.

• Failure to Act may:

  • Be perceived as implicitly condoning the behavior

  • Undermine confidence in the fairness of the judicial process

  • Impact potential appellate review, if the failure to impose sanctions caused prejudice

• Appellate Implications: If this non-action materially disadvantaged the Plaintiffs, it could be cited on appeal as an abuse of discretion or a failure to enforce procedural rules.

4. Overall Litigation Impact

The combination of the surprise document, the lack of production, and judicial inaction creates possible grounds for: ✅ Sanctions motion
✅ Motion to exclude the document at trial
✅ Motion to compel additional discovery
✅ Reconsideration of prior rulings if this document is later found to significantly impact the case merits
✅ Appellate argument if there’s a trial loss tied to this prejudicial event

⚠️ Bottom Line

Attorney Tentinger’s conduct raises serious procedural and ethical red flags. Judge Miller’s failure to act:

• May encourage further procedural abuses

• Risks creating an appealable issue, especially if Plaintiffs can show prejudice