DEALING WITH DISCOVERY GAMESMANSHIP
April 26, 2011 § 8 Comments
One of the most frustrating aspects of litigation is the gamesmanship that many lawyers employ in discovery. If you’ve practiced even a short time, you are acquainted with the repertoire: Late or no answers; failure to supplement; supplementation on the eve of trial; all-encompassing objections; evasive answers; and on and on.
Philip Thomas blogged about the COA’s decision last week upholding a circuit court decision dismissing the City of Jackson’s pleadings for a discovery violation, and followed up with a post highlighting how inconsistent the appellate courts have been in discovery violation cases.
What is the best strategy to cope?
In my experience, most attorneys are too accommodating when it comes to discovery. You don’t want to press too hard because “what goes around, comes around.” You call the other attorney who promises the answers “in a few days,” and that stretches into a few weeks and months. You hate to file a motion because you don’t want to be disagreeable. The common thread is that these approaches are absolutely ineffective.
If you’re going to get the information you need, you’re going to have to be proactive and make a record. Here’s what I suggest:
Set a hearing to address all those objections. Make the judge rule on each and every one of them. Rulings by the judge on the timing and sequence of discovery are discretionary, but her rulings on those objections will be matters of law second-guessable by the appellate courts. If the judge overrules the objections, you may reap a bonanza of information, and you have disabled your opponent from using them against you at trial. Remember: if you don’t make a record, you can’t complain about it on appeal.
If you’re going to agree to extend discovery deadlines, get a court order. Insist on an agreed order documenting the new deadline and any other terms you and counsel opposite agree on. You can’t enforce an order you haven’t got, and the record does not reflect a handshake deal. Make your record.
Send a good faith letter. UCCR 1.10(c) requires a certificate that you have made a good faith effort to resolve any discovery conflict with opposing counsel before you can be heard on a motion to compel. Mention in your letter that if you are unable to reach an agreement you will have no choice but to file a motion.
File that motion. Go ahead and do it. File your motion to compel. You are making your record. You can reach an agreement to give more time, or whatever, but don’t wimp out of a hearing unless you get what you need. Some lawyers consider this approach “ungentlemanly.” But your duty to your client comes ahead of being properly gentlemanly. I always considered it more ungentlemanly to play discovery games than to fight them. This does not mean, by the way, that you should be an aggressive a**h**e. It does mean that you need to be assertive and firm, standing your ground for the best interest of your client.
In my years of practicing, I often ran across chancellors who found discovery disputes distasteful. They made you feel as if you were wasting their time. My strategy in dealing with them was to treat it like business and make a record. You’re there to represent your client, not to impress the judge.
Don’t be afraid to be proactive in discovery. It can make or break your case.