Tuesday, December 2, 2008

Abusive Discovery Practices in Federal Court; The Failure of Local Rule 37.1

Over at the Indiana Law Blog is a story about an interesting case emanating from my hometown, Madison, Indiana. According to the Madison Courier, three Madison women had sued the city, the Mayor, the Madison police chief and others over an alleged violation of their constitutional rights when they were strip searched in January of 2007. The Defendants were sanctioned by a fine of $1,000 and ordered to pay the Plaintiffs' attorneys fees for not complying with discovery.

From the article:
U.S. Magistrate Judge William G. Hussmann Jr., decided to apply the sanctions after the defense repeatedly promised to produce evidence and depositions in the case but failed to do so as ordered by the court.

"The testimony of Mr. Barlow (the city attorney and a defendant in the action) in particular indicates to the court that these defendants were not taking their obligations to comply with discovery in a serious matter, and in many instances did not attempt to comply at all," Hussmann wrote in his decision.
This case highlights a big problem with discovery in federal cases. Federal judges in Indiana have taken the approach that they do not want to deal with discovery disputes, unless the parties cannot work things out by themselves. A local rule, Rule 37.1, was in fact enacted to force parties to have an "informal conference" to try to settle discovery before filing a Motion to Compel. On paper, the rule looks like a good one. In practice, it has not only been a failure, it has made problems with discovery compliance much worse. Law firms, usually those representing deep-pocket defendants, use Local Rule 37.1 and the court's reluctance to get involved in discovery matters, to simply lodge repeated B.S. objections to discovery knowing that the day they will be called into account for their noncompliance, if ever, is way down the road. In the meantime, defense counsel will have driven their opponents costs of litigation sky-high and maximized the work load for the Plaintiff's attorney in going through the charade of convincing the Defendants' attorney he or she needs to answer discovery.

Here's an example of what I have experienced. Recently I served Interrogatories and Requests for Production of Documents on a big corporate defendant we will call "Big Company." Out of approximately 20 interrogatories, Big Company's counsel objected to 19. Out of approximately 40 requests for production, 39 were objected to. Time after time again, the attorney for Big Company simply stated a general objection such as that answering the discovery would be "unduly burdensome" without providing any explanation whatsoever in support of the objection. I wrote a 12 page Rule 37.1 letter explaining in exhaustive detail why the attorney needed to answer discovery and provided case law saying that a factual basis for an objection must be provided. In response to my showing why his objections were not valid, Big Company's attorney simply moved on to lodge new B.S. objections.

My favorite trick though is the stunt of picking out certain words and phrases and refusing to answer the discovery claiming the words are"vague and undefined." It is a never ending semantic game...they just move from one word or phrase to another. What you are supposed to do when you have words or phrases in discovery that might have multiple meanings is to go ahead and answer discovery pointing out your interpretation of the words or phrases and that you are answering according to that interpretation. What it is supposed to be done, doesn't matter though. The practice, after all, is simply nothing more than a tactic to avoid or delay answering discovery.

In the Requests for Admission I served, Big Company simply denied virtually every request, even things the company already admitted were true in other documents. Unfortunately answers to Requests for Admissions are not under oath. Again, Big Company's attorney knows that being held accountable for lying in answers to Requests for Admission rarely happens and when it does, the sanctions, like the sanctions for not complying with discovery, are generally just a slap on the wrist.

While Judge Hussman's sanctions are a positive step, I'm not sure a fine of $1000 and attorney's fees is going to concern that many deep pocket defendants about the consequences of using repeated discovery non-compliance as a weapon against cash-strapped plaintiffs. If federal courts are going to put a stop to Big Company defendants using abusive discovery practices, judges need to address upfront problems with discovery and harshly sanction practices such as those outlined above. I have seen it done. A federal judge in one of my cases sanctioned a big company for its failure to respond to discovery by simply letting the entire case go to the jury, thus spoiling Defendant attorney's legal strategy of winning on summary judgment. If federal judges were to impose those types of sanctions, and did so earlier in the process, abusive discovery practices in federal court would end virtually overnight.


varangianguard said...

And some people wonder why it was important to determine just what the meaning of is is (or was now, I suppose).

Paul K. Ogden said...

That's funny, Varan, because I thought of exactly that Clinton "it" example when I see those answers where they claim not to know the meaning of various words.

varangianguard said...

Just as well I skipped trying Law School, then.

I would most certainly have been one of "those" lawyers who would have been using semantics to advance my own argument or delay an opponent's. AND, I would have gone home every night patting myself on the back for being so awfully clever.

Doug said...

I've seen what you're talking about, of course. But I've also seen any number of kitchen sink interrogatories and requests for production -- "Request #1: Produce all handbooks, procedures, or any other documents." Parsing that sentence: "Produce any documents."

I think courts need to take a more active role in refereeing discovery on both sides.

Paul K. Ogden said...

Doug, I know where you're coming from but when an attorney objects to 19 of 20 interrogatories and 39 of 40 requests for production, I'm pretty sure those objections are not in good faith.