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How to Attack
Whether you face The Aggressor
or The Great Obstructor, you can fight back when defendants try to block or delay
your client's case.
By Robert K. Jenner
published in Association of Trial Lawyers of America, February 2002
In mass tort litigation, the attorney who is aggressive
and in charge has an undeniable advantage. So in the battleground known as discovery,
zealous litigators can go too far, and discovery abuse can be the result.
the line between admirably aggressive advocacy and unacceptable abuse is not well
defined; other times, it has clearly been crossed. The goal in mass tort cases
and other complex civil litigation is to stay one step ahead of your adversary,
document all abuses, and use offenders' conduct to your advantage.
there are two types of litigators who obstruct the flow of a complex case. The
first is The Aggressor, a mean-spirited opponent who delays the case with antics,
destructive flamboyance, and fear. This attorney intimidates opposition witnesses
and counsel alike and feels no reservation about misrepresenting facts to the
court and others.
An old-school litigator, The Aggressor
needs to learn that these tactics will not be tolerated. Indeed, over the past
decade judges have been more willing to sanction attorneys for "Rambo"
litigation; the courts still expect civility among lawyers (no matter how insincere).
As one federal court stated:
The one consistent
theme that runs throughout [defense counsel's] motion papers is his use of personal
attacks and unduly inflammatory language in his certifications and briefs. Use
of such language does nothing to assist the court in deciding the merits of a
motion, wastes judicial resources by requiring the court to wade through the superfluous
verbiage to decipher the substance of the motion, does not serve the client's
interests well, and generally debases the judicial system and the profession.
court is aware that a lawyer has an obligation and a duty to represent his client
zealously and with diligence. However, "the circumstances of this case .
. . present the unhappy picture of a lawyer who has crossed the boundary of legitimate
advocacy into personal recrimination against his adversary. . . . Lawyers are
not free, like loose cannons, to fire at will upon any target of opportunity which
appears on the legal landscape. The practice of law is not and cannot be a free-fire
second type of litigator bent on stalling the case is The Great Obstructor. This
opponent gives incorrect information with a smile as you go on a wild goose chase,
reviewing irrelevant and incomplete documents and other material. Your opponent's
promises to provide supplemental information are usually not kept, and The Great
Obstructor typically blames the corporate client for the delay. Because this attorney
is nice and seems to want to cooperate, you may be reluctant to file a motion
to compel, and even more reluctant to file a motion for sanctions.
matter which opponent you face, counterproductive feuding eats up time, and your
case wallows because you and your experts lack the information you need to prepare
There are several appropriate responses to
such tactics. The first thing to do when you encounter inappropriate discovery
responses is to turn to the complex-case litigator's bible, Full Disclosure: Combating
Stone walling and Other Discovery Abuses.
response depends at least partly on your own demeanor, proclivities toward open
confrontation, and perception of how the judge will view hand-to-hand combat.
As a general rule, however, retaliating in kind against "Rambo" litigation
renders you as unprofessional and un sympathetic as your opponent. When the judge
reads the deposition transcripts, views the videotapes, or reads the poison-pen
letters, the court condemns both counsel rather than focusing on the instigator.
Responding professionally is certainly the ethical course of conduct, and it has
practical benefits as well.
Whatever response is best
for you, the key is to remember that your reputation for honesty, a resistance
to intimidation, and an unwillingness to posture or bluff will help you fend off
the slings and arrows of The Aggressor and force The Great Obstructor to cooperate
with your discovery requests.
mass tort litigation, discovery often lags behind the filing of the complaint
because the defendant claims that it has not had the opportunity to amass all
the documents the plaintiff has requested. Even so, it is important to serve discovery
immediately—preferably with the complaint—so that it is your opponent
who requests the first favor: an extension. Rambo now owes you one.
you should meticulously monitor deadlines and ask for extensions only when necessary.
Your clients should be completing draft interrogatories and assembling documents
before you file the complaint. That way, you have a significant jump on responding
to the defendant's discovery requests and do not need extensions.
The Great Obstructor sends you discovery responses that uniformly lack any useful
information or documents, the real war begins. Documents, after all, are the heart
of mass tort litigation. You can argue all day over interrogatory answers, but
experienced defense counsel can generally turn their clients' answers into useless
verbiage. So you should fight only those discovery skirmishes that must be won,
concentrating the big guns on the battle for the paper.
the most important step you can take to prevent delay and expose unnecessary disruption
of a discovery schedule is to document the abuse with correspondence describing
your opponent's failure to follow the rules. A short, noninflammatory letter advising
the defendant of the infraction and noting the steps necessary to correct it will
be a valuable exhibit when you inevitably must make a motion to compel.
the outset, remember that defense counsel is not allowed to justify failure to
produce documents by blaming an uncooperative client. Federal Rule of Civil Procedure
26(g) defines counsel's duty in responding to discovery requests: The lawyer must
make "a reasonable effort to assure that the client has provided all the
information and documents responsive to the discovery demand."
defendants provide documents in a mass tort case, they are usually sent to a central
depository. This mechanism contains costs—many
plaintiff lawyers share the expense of coding, reviewing, and copying documents—but
also provides much opportunity for abuse.
the defense often seeks to invoke the "business records option" in providing
answers to interrogatories. Federal Rule 33(d) permits a party, in certain circumstances,
to respond to interrogatories by producing its business records for inspection
rather than giving a specific answer. For the defendant to invoke this option,
it must show that making a traditional response is too burdensome and that the
business records option is justified.
However, a defendant
may not make the "dump truck" discovery response, dropping at its adversary's
doorstep hundreds of thousands, if not millions, of documents, undifferentiated
as to subject matter or source and without a meaningful index. Do not tolerate
this practice. Courts have held that it is improper to respond to specific inquiries
in this way, and the rule is clear that a "responding
party has the duty to specify, by category and location, the records from which
answers to the interrogatories can be derived."
of the potential for abuse, central depositories are usually used only with court
approval. The court should order the defendant to provide a searchable, computerized
index of all documents being placed in the depository, and to allow the plaintiff
to access and copy the documents at reasonable times without supervision (if the
depository is not operated by a plaintiffs' steering committee).
should also insist that your opponent provide a "privilege log"—a
list of documents that the defense refuses to produce for any legally proper reason
(attorney-client privilege, work-product doctrine, and so on). The log must describe
the nature of the documents, communications, or items not produced, without revealing
information that is privileged or protected but enabling other parties to assess
whether the claim of privilege is legitimate.
is better suited to The Aggressor than the deposition room, where this attorney
can be all too eager to embarrass you or harass your witness. In taking deposition,
The Aggressor is often hostile and demeaning.
might be wise to get a court order at the outset, limiting the length of all depositions
and setting forth payment obligations and other conditions if these matters cannot
be agreed on before discovery begins. Federal Rule 30(d)(2) limits a deposition
to one day of seven hours, but it permits the court to allow additional time if
needed for a fair examination. Whether the limitation is one day or more, it must
be clear that your opponent will not be permitted to drag the deposition on forever.
possible, you should keep depositions of your witnesses from going into a second
day. Schedule them to begin early in the day, and keep breaks to a minimum. This
way, defense counsel will not have time to regroup overnight and come up with
repetitive questions to ask from different angles. The defendant would do that
to catch the witness in an inconsistency; your plan should be to prevent that.
it is your turn to depose the defendant's witnesses, The Aggressor may object
to your questions in a way that suggests answers to the witness9 or may interrupt
the deposition to confer privately with the witness. These tactics are highly
improper. Counsel may not interrupt the deposition except to assert a privilege.
prevent misconduct, some courts have imposed special masters to oversee depositions
and have ordered that depositions be taken in the courthouse.
The Manual for Complex Litigation specifically recognizes that a master may be
appropriate where "abuses are rampant."1
untoward conduct must be placed on the record. If the conduct is nonverbal, ask
the court reporter to note it—for example, "Counsel is pounding the
desk and turning red, and yelling like he always does." It may also be effective
to ask the (appropriately prepped) witness, "Do you feel intimidated or offended
or badgered?" An affirmative answer should give you sufficient ammunition
to stop the deposition and seek appropriate relief in light of your opponent's
In mass tort and other complex litigation,
many depositions are videotaped. This significantly impairs The Aggressor's ability
to misbehave because the court, if not the jury, can see the specific conduct
As the authors of Full Disclosure discuss, the best
way to combat discovery abuse is to "turn stonewalling to the plaintiff's
advantage by making the [offender] bear the costs of its . . . abuse."
You often need look no further than the Federal Rules of Civil Procedure, the
Manual for Complex Litigation, and the local rules of the jurisdiction for the
tools to build a case for sanctions.
Federal Rule 37
provides that an ag grieved party may seek sanctions against an uncooperative
opponent in the form of costs, attorney fees, an order striking evidence or defenses,
entry of a default judgment, or other action to ensure that justice is achieved.
The rule requires that the party asking for sanctions first make a good faith
effort to obtain the disputed discovery without court action.
your opponent fails to respond to discovery requests in a timely manner, the initial
penalty usually is a requirement that the defendant pay your fees and any expenses
you incurred in your effort to compel discovery. More severe sanctions may be
appropriate if the defendant continues to disobey the court.
when one party wrongfully denies another the evidence necessary to establish a
disputed fact, courts may apply the adverse-inference rule. This rule allows a
presumption that the missing evidence would have enabled the aggrieved party to
establish a case.
the abuse occurs during a deposition, Rule 30(d)(3) permits a court to award sanctions
against an attorney who impedes, delays, or otherwise frustrates the fair examination
of a witness.
Rule 37 governs both the entitlement to
and amount of any monetary sanctions. The amount depends on the nature of the
abuse. Courts consider four factors: the reasonableness of the moving party's
attorney fees, the minimum amount necessary to deter the conduct in the future,
the offender's ability to pay, and the severity of the violation.
a U.S. district court judge has said, "If the only sanction for failing to
comply with the discovery rules is having to comply with the discovery rules if
you are caught, the diligent are punished and the less than diligent [are] rewarded."
This is why discovery sanctions must be applied consistently, not only to penalize
those whose conduct may be deemed to warrant a sanction, but also to deter those
who otherwise might be tempted to engage in misconduct.
for sanctions are especially appropriate, for example, when your opponent has
violated a court order, made a misrepresentation to the court, or continued to
engage in certain conduct after being placed on notice that it is improper. Sanctions
are also appropriate when documents are produced only in response to motions to
compel and motions for sanctions. It is prudent
to attach to your motion the letter you sent to your opponent complaining of the
In a tongue-in-cheek essay, "Stupid
Lawyer Tricks," Yeshiva University law professor Charles Yablon suggested
that the following sanctions might reduce incivility:
special discovery masters to attend every deposition and glare at the litigators
whenever it looks like they are going to get out of line. The cost of such masters,
who bill by the hour, can be allocated among the parties however the court deems
appropriate. As first-year law students know, there are few things more annoying
than paying for someone to yell at you.
- Throw the
abusive discovery in the garbage, and make the lawyers do it all over again, just
like the judge did in Blank v. Ronson [97 F.R.D. 744 (S.D.N.Y. 1983)]. I know
this seems a little wasteful and duplicative, but you can't make meatloaf without
busting some chops.
- I call this one "asymmetric
courtesy." Who says scheduling orders, filing deadlines, time extensions,
and all the other judicial case-management rulings must treat both sides equally?
I say, if lawyers are abusing the pretrial process, the pretrial process ought
to abuse them right back. Give the nonabusive lawyers twice as much time to file
papers as the nasty ones, or, less severe but more annoying, make the nice lawyer's
papers always due on Friday at noon, and the sleazeball's due on Monday at 9 a.m.
the abusive lawyers go back and take some remedial law school courses. Sure they
will be unprepared and inattentive, but that won't make them any different from
regular third-year law students.
- Sentence abusive
lawyers to community service on the most unimportant, boring bar committees you
can find. Do not worry, there will be lots to choose from.
We are all served by civility. The Aggressor and The Great Obstructor undermine
the confidence not only of the opposing lawyer and the judge, but also of the
jury and the public, in the civil justice system. Persistent, ethical counsel
and activist, attentive judges must stop the madness.
1. Cannon v. Cherry
Hill Toyota, Inc., 190 F.R.D. 147, 161-62 (D.N.J. 1999) (quoting Thomason v. Norman
E. Leher, P.C., 182 F.R.D. 121, 123 (D.N.J. 1998)).
2. FRANCIS H. HARE JR.
ET AL., FULL DISCLOSURE: COMBATING STONEWALLING AND OTHER DISCOVERY ABUSES (1994).
3. FED. R. CIV. P. 26(g) advisory committee's notes to 1983 amendments.
MANUAL FOR COMPLEX LITIGATION (THIRD) §21.444 (3d ed. 1995) [hereinafter
MANUAL]. This section recognizes that central document depositories can help meet
the need for efficient management of voluminous discovery documents in multiparty
5. See, e.g., Govas v. Chalmers, 965 F.2d 298 (7th Cir. 1992);
In re Bilzerian, 190 B.R. 964 (M.D. Fla. 1995); Scripps Clinic & Research
Found. v. Baxter Travenol Labs., Inc., No. 87-140-CMW, 1988 WL 70013, at *1 (D.
Del. June 21, 1988); Derson Group v. Right Mgmt. Consultants, Inc., 119 F.R.D.
396 (N.D. Ill. 1988).
6. See advisory committee's notes on amendment to FED.
R. CIV. P. 33(c) (1987); see also Rainbow Pioneer No. 44-18-04A v. Hawaii-Nevada
Inv. Corp., 711 F.2d 902, 906 (9th Cir. 1983).
7. FED. R. CIV. P. 26(b)(5);
see Leach v. Quality Health Servs., 162 F.R.D. 499, 501 (E.D. Pa. 1955); In re
Unisys Corp. Retiree Med. Benefits ERISA Litig., MDL No. 969, 1994 WL 6883, at
*2 (E.D. Pa. Jan. 6, 1994).
8. For an amusing tirade, see Paramount Communications,
Inc. v. QVC Network, Inc., 637 A.2d 34, 53-54 (Del. 1994). Counsel's vituperative
language at a deposition was found to be "outrageous and unacceptable."
Id. at 55.
9. Federal Rule 30(d)(1) requires that objections be stated "concisely
and in a nonargumentative and nonsuggestive manner." Local rules may also
establish guidelines for objections. In Van Pilsum v. Iowa State University, the
court imposed sanctions against an attorney who repeatedly interrupted a deposition
to "clarify" questions for his witness and attacked opposing counsel's
ethics, litigation experience, and honesty. 152 F.R.D. 179, 180-81 (S.D. Iowa
1993). See also Calzaturficio S.C.A.R.P.A. S.P.A. v. Fabiano Shoe Co., No. Civ.
A. 1999-12056-MLW, 2001 WL 682744 (D. Mass. June 14, 2001).
10. See, e.g.,
Calzaturficio, No. Civ. A. 1999-12056- MLW, 2001 WL 682744; Hall v. Clifton Precision,
150 F.R.D. 525, 527 (E.D. Pa. 1993); In re Alexander Grant, 110 F.R.D. 545, 547
(S.D. Fla. 1986).
11. See Hall, 150 F.R.D. 525.
12. MANUAL, supra note
4, at 90.
13. In Kelly v. GAF Corp., a new trial was ordered because of defense
counsel's improper conduct during deposition of the plaintiff's medical expert,
which was videotaped. The court cited "unwarranted and unremitting"
objections to the expert's testimony. 115 F.R.D. 257 (E.D. Pa. 1987).
HARE ET AL., supra note 2, at 181.
15. See Burnet v. Spokane Ambulance, 933
P.2d 1036 (Wash. 1997); Espinal v. City of New York, 695 N.Y.S.2d 610 (App. Div.
1999); McInnes v. Yamaha Motor Corp., 659 S.W.2d 704 (Tex. Ct. App. 1983).
16. See West v. Johnson & Johnson Prods., Inc., 220 Cal. Rptr. 437 (Ct. App.
17. In re Kunstler, 914 F.2d 505, 523 (4th Cir. 1990).
v. Textron, 192 F.R.D. 494, 506 (D. Md. 2000).
19. See id. at 505; see also
Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex. 1992).
20. Charles Yablon,
Stupid Lawyer Tricks: An Essay on Discovery Abuse, 96 COLUM. L. REV. 1618, 1642-43