Am I naive, or is the sad level of inappropriate gamesmanship in the civil discovery process obvious to others as well? Consider the following forms of pathology, all observed in the past month.
Objecting to everything. This is a classic. We keep copies of the discovery others serve on our clients. We then try to use the very terms our adversaries have used in crafting our own discovery. It is frequently the case that adversaries then object to each and every question. Their terms are, they claim, now vague, unclear or burdensome.
This is simply bad faith and it should not be tolerated. The standard for obtaining items in discovery is whether the information sought is reasonably calculated to yield admissible evidence. Objecting to everything is mere scorched Earth obstructionism.
Requesting narratives. A client not long ago responded to a detailed set of interrogatories by giving a detailed answer. The answer went on for page after page of dense type. His thinking was that if the defendant wanted all the reasons he was suing, he would give them.
My adversary’s response? Can the client be more specific? I kid you not. The lawyer worried that the sweeping narrative did not parse the claims as to the various defendants with enough precision.
My initial instinctive response to this is along the lines of “tough cookies.” My client has written several volumes of an encyclopedia already. If you want to purchase the full set, call Encyclopedia Britannica. You asked for a narrative; the client complied. At some point you are stuck with the answers you requested. Defend as you see fit.
Saying nothing. At the other extreme are those interrogatories returned with little or no responsive information. We’re told to see this document or that exhibit. Conclusory assertions are substituted for a response. Every assertion is qualified by the right to amend at some later time. It is hard to escape the sense that many lawyers view discovery as a game of obsfucation.
My general view toward discovery is that compliance is the price that plaintiff’s pay for suing. The defendant suffers the indignity of a suit served without warning. His life is upended and all at once a new fear dawns. Suddenly, a stranger in a suit becomes confidante and counselor.
Plaintiffs should be required to answer questions about the basis of their claims. It is only fair. And it is only fair that defendants should do likewise as to their defenses.
Instead we get lawyers who described the very terms they themselves use as vague. We get lawyers who ask for all the letters in the alphabet and then complain that not all the words in the dictionary have been spelled out for them. And we get lawyers who think that an answer of more than three words constitutes malpractice.
All this takes place in a largely unsupervised way. Sure, lawyers can file motions to compel, but who really wants to go to a judge, nose running, to sniffle that the meanies on the other side won’t answer your questions?
Civil litigation is wasteful. Plaintiffs are free to sue with virtual impunity. Rare is the vexatious litigation claim that makes it to trial after a defense verdict. The American Rule requires the loser to bear his own costs. I am not sure this makes sense.
And it certainly does not make sense to permit defense counsel to churn their files on an insurance company’s hourly pay by cooking up discovery tripe. I sometimes imagine counsel’s glee as they file some execrable swill, knowing it was meritless but lucrative in a middling sort of way.
Discovery is often a battlefield of broken dreams. Crafty counsel sit up nights to try to lay traps for the unwary. These tricks are little more than black magic that discredit the pursuit of justice. Enough already!
Norm Pattis is a criminal defense lawyer and civil rights attorney in Bethany.