The Rules of Civil Procedure assume that lawyers will be ethical and honest in providing discovery to their opponents. Unfortunately, the reality is that lawyers get away with discovery abuses every day. These abuses continue because they are extremely difficult to pin down and even harder to cobble into a motion to compel. The following are the top 10 dirty pool discovery abuses.
The shuffle, otherwise known as the “deposition shuffle,” goes like this: You need to take your depositions in a particular order because you believe this is the best way of developing your case. You therefore schedule the witnesses in the order that you need them, only to find, generally at the last minute, that opposing counsel cannot accommodate your order of depositions.
The usual excuse is the convenient “unavailability” of the people you wished to depose earlier. Sometimes you will only find out about this lack of availability when you actually show up to take your depositions. Counsel will protest that they only knew of that deponent’s unavailability “at the last moment,” but, fortunately for you, “should you wish to go forward,” the other deponents scheduled for later are now, amazingly, “available.”
“The trickle” goes like this: You have sent document requests to your opposition. You receive only a small amount of your requested documents. Opposing counsel states, in its responses, that it reserves the right to supplement its answers apparently with more documents — if they are found — because their “investigation of the case is continuing.” Over the course of the litigation, documents gradually arrive piecemeal with a cover letter indicating that your opposition is supplementing its previous document responses. There may be several times over the course of the litigation that you receive these additional documents. At first glance, it seems as if your opponent is acting in a diligent and ethical manner in supplementing its responses.
However, on review, you begin to see that there was no reason why these supplemental documents could not have been produced much earlier and you now sense that they have been deliberately held back, probably because your opponent wanted you to take certain important depositions before giving you key documents that might have been helpful or possibly critical to the depositions you already took.
You only have a limited amount of time to prepare your case before discovery closes. In this scenario, your opposition tries to run you out of time so you cannot get all the discovery you need to properly prepare your case.
There are various ways the “run-out” works. Assume, for example, you have a case in federal court and you have 90 days to complete discovery. You send out your initial discovery expeditiously. Your opposition asks you for an extension to answer and you, not wishing to be discourteous and believing you may need a courtesy in return at some point, graciously grant a two-week extension. After two weeks, you still do not receive your discovery and rather than involve the court in what may be unnecessary motion practice, you try to call your opposition. This takes at least another week. Finally, you get the responses to your discovery, but now 45 of your 90 days have already expired.
You review the discovery and find it incomplete. You send a deficiency letter. This takes at least another week or two. Your opposition calls or emails you after hours, knowing that you are not available, but in an attempt to show that it is engaging in a diligent process to resolve discovery deficiencies. Two weeks later, you receive additional documents. You have a couple of weeks left before discovery ends and rush to schedule depositions, only to discover that on the particular days you are free, your opposition is not available until, very conveniently, a day or two before discovery ends.
You are now denied any chance of following up with additional discovery based on your deponents’ testimony. When you request an extension of discovery, expecting the courtesy you extended early in the litigation to be returned, you receive a reluctant refusal. Your opponent would of course accommodate you, if it were up to her, but unfortunately she is under strict orders from the client to move the case and has to deny you any extension. She uses the gambit of “client cover.”
The Client Cover
In “client cover,” your opponent uses the excuse that his client has authorized him to do or not to do something that critically affects your case. For example, you need an extension to answer a complaint or for a discovery response. Your opponent tells you he would be too willing to give it to you if it were up to him but, unfortunately, your opponent’s client has refused to authorize the extension.
Alternatively, your opponent has indicated his willingness to pay a certain sum to resolve the litigation, only to find that his client has revoked your opponent’s authority. The client cover story is used by your opponent to take a discourteous advantage that he could never take directly.
As a rule of thumb, you can determine if you are a victim of client cover by determining whether the issue in question can be decided by your opponent directly as a matter of professional judgment, or whether it genuinely requires the consent of your opponent’s client. For example, a determination to drop a party or a cause of action, or to grant an extension of discovery or to extend some other courtesy to counsel, are issues generally reserved to a lawyer’s professional judgment and would not require the consent of a client. Issues of settlement authority are obviously a different matter and do require a client’s express consent irrespective of the side you are on.
Most litigators are familiar with “the slam.” It is the opposite of “the trickle.” The slam occurs when your opponent slams you with thousands of documents and you have difficulty matching up the produced documents to your document requests. Indications that you have been slammed include the production of numerous and irrelevant documents that you never asked for and the production of duplicates of documents you did ask for. The slam is often used in conjunction with “the needle.”
“The needle,” or, to give it its full title, “the needle in the haystack,” occurs when your opponent buries critical documents deep within other documents that are entirely irrelevant or duplicative. This sometimes also occurs with admissions that are secreted within document requests or interrogatories.
The idea of secreting admissions — disguising them as something else or distracting you from noticing that they have been propounded — is designed to run you out of time so your opponent’s admissions are considered admitted because, for whatever reason, you failed to respond to them within the 30 days required.
This is one of the most common abuses. An opponent’s responses to document requests or interrogatories often contain an objection on the basis of some kind of privilege. Most often, these are the work-product doctrine and the attorney-client privilege. Generally, despite this objection, no privilege log is attached, so you have no idea whether the objection, on the basis of privilege, has any merit. If privilege is asserted as the basis of a refusal to answer an interrogatory or produce documents, you should always insist on a privilege log.
Often, when you review the documents received from your opponent, you may see that portions have been redacted. If there is no explanation for these redactions, you need to follow up. It is possible that the very document you need to win your case is one that contains critical information that your opponent has redacted in the hope that you fail to ask what has been erased and why.
The Confidentiality Block
The “confidentiality block” has become increasingly common. Your opponent refuses to give you all of your discovery unless you sign a draconian confidentiality agreement. The confidentiality block does a number of things. First, it delays your case (see “the run-out”) because your opponent will not give you all your requested documents until the issue of confidentiality is resolved. Second, courts are reluctant to get involved in these spats and expect counsel to work these issues out themselves. Third, if you have a problem with the proposed confidentiality agreement, your opponent will probably blame you for any delay in moving the case forward.
Fourth, and most important, after you sign the confidentiality agreement, you and your law firm may suddenly become the subject of litigation for inadvertently violating the agreement. This can happen easily enough through the inadvertent filing of a pleading or motion that references a confidential document. Welcome to the brave new world of litigation, where overbroad confidentiality agreements are propounded, usually by the defense, and are given a tacit nod from the court and where your opponent can use a technical violation to shift the focus of the litigation on to you.
Unfortunately, there is a prevalence of each of these unethical discovery abuses, possibly as a result of increasing competition among attorneys in a difficult economy. As all lawyers know, honest discovery practices are integral to the fairness of the judicial process. Every lawyer has an ethical and legal duty to maintain this integrity and to alert the court of any discovery abuse even if discovery disputes are the last thing a court wishes to adjudicate. •
Timothy M. Kolman is managing partner of Kolman Ely, a litigation firm specializing in representation of discriminated employees throughout the state.