In my article in last week’s Pennsylvania Law Weekly, “Ten Discovery Abuses to Look Out for During Litigation,” I discussed the top 10 below-the-radar discovery abuses.
Here are another 10. These are also important — and also below the radar — but are not so commonly used.
The gumshoe goes like this: You propound your interrogatories or document requests and you get back the response, “Investigation is continuing.” This may be code for, “We have more information but we have decided not to give it to you right now,” leaving the opportunity for your opponent to provide it to you later, possibly to prejudice you or to put you off. Whenever you see, “Investigation is continuing,” you need to ask yourself whether it makes any sense in the context of your case.
Be on the alert if your opposition has had plenty of time to conduct an investigation. Investigations vary in time and complexity, depending on the nature of the case, so there is no rule on this, but you could ask supplementary interrogatories about the nature and scope of the “investigation.” However, if counsel is involved in the investigation, you will draw the inevitable attorney-client privilege objection.
The Reverse Gumshoe
The reverse gumshoe occurs where a party in litigation willfully refuses to do any investigation, despite being required by federal or state law to find documents and produce designees who may know answers to critical questions. The reverse gumshoe occurs when your opponent knows that an investigation — perhaps even the most minimal — will turn up damning discoverable evidence.
The rationale of the reverse gumshoe is simple. It goes like this: Your opponent knows that an inquiry into the integrity of your case, interviewing witnesses or searching for documents, is most likely to produce damning discoverable evidence that your opponent will then be obligated to turn over. However, if there is no investigation, no prejudicial documents or testimony will be uncovered and there will be nothing significant or prejudicial to disclose to opposing counsel.
The Subpart Dodge
Let’s say you propound an interrogatory with subparts (a) through (f). Instead of answering both the interrogatory and its subparts, opposing counsel just answers the interrogatory, totally ignoring all the subparts. In a case like that, you need to send a deficiency letter pointing out that your subparts have not been answered.
Also, such an answer by your opponent can be confusing because, without an ability to see responses to the interrogatory’s subparts, it may be unclear which parts of your interrogatory have been answered and which parts have been ignored.
The mirage appears as if your interrogatory has actually been answered by your opponent when, in fact, a close reading indicates that it has not been. The answer is not really there — it just appears to be there. It’s a mirage. Sometimes this can be easy to catch, but occasionally it can be very difficult to know if you have received an accurate response. For example, you propound the interrogatory, “When did the plaintiff take his medication on January 3, 2011?” You receive the answer, “Plaintiff was prescribed to take his medication three times a day with food.” Clearly, this answer is not responsive, but you need to read very carefully to catch these sleights of hand.
Intimidator abuse often occurs when a more experienced or a more desperate lawyer attempts to use improper methods to intimidate his or her opposition. Intimidation can take many forms. Often, in federal court, it involves a letter to opposing counsel threatening to file sanctions under Rule 11 of the Federal Rules of Civil Procedure.
However, Rule 11 allows a party safe harbor of 20 days — to withdraw or to resolve the offending pleading — after receiving a copy of the motion threatening Rule 11 sanctions. It follows that a letter threatening Rule 11 is often no more than an intimidation tactic and the filing of such a Rule 11 motion without giving the 20-day notice period is itself sanctionable.
Most intimidation occurs in depositions when a more seasoned lawyer attempts to throw his or her opponent off his or her game with distracting and offensive objections, some of which may be scarcely veiled personal attacks. If a lawyer does not properly assert him or herself in the face of these attacks, the client may start to unravel — at the most critical time — while also losing confidence in counsel. If the matter is in federal court, these kinds of discovery abuses, during depositions, should be brought to the judge’s attention, via a telephone call, during the deposition, if necessary. If the matter is in state court, a record should be kept, preferably with the recording of your opponent’s voice, and a motion filed swiftly after the deposition is concluded.
The ‘No Comprendo’
In the “no comprendo” scenario, your opponent has suddenly lost his or her ability to understand plain English. This can be particularly infuriating. For example, you ask for all documents “reflecting or relating to any communications between plaintiff and management.” You receive the response, “Defendant objects to this document request because defendant does not know or understand the meanings of the terms ‘reflecting,’ ‘relating,’ ‘communications’ and/or ‘management.’” The appropriate way to deal with the “no comprendo” is to send a deficiency letter. Courts generally have little patience for an opponent’s willful noncomprehension of plain English.
The ‘You Can’t Win’
Your opponent sends you a deficiency letter alleging you have failed to answer fully and completely certain aspects of his discovery. You contact your client, attempt to rectify any shortfall in your responses, and write back to your opponent supplementing your answers. Your opponent writes back, telling you that your responses are still inadequate. You attempt to supplement your responses again, but you have little or no further information. Your opponent again informs you that your responses are still inadequate and accuses your client of hiding documents or of not diligently trying to find them and then threatens to file a motion to compel. If this back-and-forth continues and you have nothing more to add or supplement, you may be a victim of the “you can’t win” strategy. With the “you can’t win” gambit, it doesn’t really matter what you produce or how detailed your answer — your opponent continues to keep up the pressure to demonstrate that your responses are still inadequate.
The Subpoena Scam
In the subpoena scam, your opponent gives you notice that she will be subpoenaing certain documents from third parties. You do not object because you consider these subpoenas within the scope of discovery. This is the scam. You never get the documents she subpoenas. She never sends them to you. When you discover you do not have them, you ask why she never sent them to you. She tells you, straight-faced, that you never asked for them. So, in order to ensure you are not a victim of this scam, you need to send your opponent a letter stating that when she receives all subpoenaed documents, she must send them to you immediately.
The mutant occurs when your opponent literally mutates the question you have asked to a different question that your opponent then answers.
Here is an example. Suppose you ask the interrogatory, “State the reasons for plaintiff’s termination from defendant’s employment.” It seems like a straightforward enough question, but you receive the following response from your opponent: “For the purposes of this answer, defendant will assume that plaintiff is referring to a layoff from defendant’s employ and not to any termination as a consequence of any discriminatory animus or retaliation on the part of defendant or defendant’s agents or employees. Therefore, defendant states that plaintiff was not terminated as a part of any layoff.”
This is a fairly obvious example of how an original question can be mutated by your opponent. Your opponent is now answering his question, not yours. Although this mutation may be quite subtle, the giveaway is often your opponent’s use of the word “assume.”
The block, otherwise known as the procedural block, is used in federal practice where only 25 interrogatories and their subparts can be propounded. In the block, your opponent objects to answer any interrogatories she believes exceed the 25 interrogatory limit. This kind of objection can cause some serious problems for a litigator. First, the last propounded interrogatories are sometimes the most important.
Second, your opponent never bothered to call you to try to work this out to ask you which interrogatories you might want answered and which ones you could dispense with and, third, your opponent may well have deliberately miscounted the number of your interrogatories, especially when it comes to calculating the number of subparts.
The procedural block is also used in arbitrations where, at the inception of arbitration, your opponent will try to limit you, by stipulation, to a certain number of document requests or to a certain number of interrogatories. Be advised that some of her arbitration organizations impose some significantly restrictive discovery limits. If you have an arbitration, you need to be aware of the possible discovery abuses these restrictions can create.
It is unfortunate that an article of this kind is necessary, but, hopefully, the more litigators who are aware of these stealth discovery abuses, the less likely such abuses will succeed. •
Timothy M. Kolman is managing partner of Kolman Ely, a litigation firm specializing in representation of discriminated employees throughout the state.