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How to Attack Discovery Abuse
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
Originally 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.

Sometimes 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.

Generally 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.

The 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 zone."1

The 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.

No 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 for trial.

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.2

Your 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.

Early discovery

In 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.

Conversely, 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.

When 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.

Perhaps 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.

Document production

From 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."3

When defendants provide documents in a mass tort case, they are usually sent to a central depository.4 This mechanism contains costs—many plaintiff lawyers share the expense of coding, reviewing, and copying documents—but also provides much opportunity for abuse.

For example, 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,5 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."6

Because 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).

You 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.7

Depositions

No battlefield 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.8

You 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.

Whenever 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.

When 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.10

To prevent misconduct, some courts have imposed special masters to oversee depositions and have ordered that depositions be taken in the courthouse.11 The Manual for Complex Litigation specifically recognizes that a master may be appropriate where "abuses are rampant."12

All 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 conduct.

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 in question.13

Sanctions

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."14 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.

When 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.15

Furthermore, 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.16

When 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.17

As 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."18 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.

Motions 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.19 It is prudent to attach to your motion the letter you sent to your opponent complaining of the misconduct.

In a tongue-in-cheek essay, "Stupid Lawyer Tricks," Yeshiva University law professor Charles Yablon suggested that the following sanctions might reduce incivility:

1. Appoint 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.
2. 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.
3. 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.
4. Make 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.
5. 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.20
   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.
   

Notes

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.
4. 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 litigation.
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).
14. 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. 1985).
17. In re Kunstler, 914 F.2d 505, 523 (4th Cir. 1990).
18. Poole 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 (1996).

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