New MRCP 26

January 13, 2020 § 2 Comments

In case you missed it, the MSSC adopted a new version of MRCP 26 that went into effect January 1, 2020.

You can find it at this link. There’s too much new to cram into this space. You would do well to study it and change your practice accordingly.

As I see it, the changes will primarily affect three groups:

  1. Lawyers who do discovery.
  2. Lawyers who don’t bother to read the rules.
  3. Lawyers who use expert witnesses.

THE PRICE OF FAILING TO GIVE A COMPLETE ANSWER TO THE EXPERT INTERROGATORY: $3,603,712

September 20, 2012 § 4 Comments

What is the price of numerous discovery violations, including failure to make timely disclosure of the substance of the expert’s expected testimony and failure to supplement seasonably?

In Ballard Realty, et al. v. Ohazurike, et al., decided September 6, 2012, the MSSC reversed a jury verdict of $3,602,712 for those very failures on the part of the plaintiffs to designate their expert properly and give a complete answer to the expert witness interrogatory.

The Ohazurikes had designated a witness, Dr. Glover, and answered the rest of the usual expert interrogatory that their expert was …

 expected . . . to testify to all things in her evaluations and opinions regarding the valuation of the lost income of the Plaintiffs and as to other things regarding the present value calculations and potential economic value and profitability of Plaintiffs company Upstart Games and the lost value of Plaintiff’s damages intellectual property board games.

The Ohazurikes attached a copy of the expert’s curriculum vitae (CV) as an exhibit to their designation of experts and added that “[a] copy of Dr. Glover’s report will be forwarded once it is received.” It was not until only five days before trial, on morning of the day that the expert was to be deposed that the report was received by opposing counsel. That report for the first time disclosed that the expert expected to project damages in excess of $15 million.

The defendants did file various motions with the court to try to get the expert testimony excluded, and they did object at trial based on the discovery violations, all to no avail. There was no other evidentiary basis in the record other than this particular expert’s testimony to support the $3 million-plus verdict, which the supreme court reversed.

Justice Randolph’s opinion explained:

¶14. We find that the trial court abused its discretion by allowing Glover to testify despite numerous discovery violations, including failure to timely disclose the substance of Glover’s expected testimony and to seasonably supplement discovery responses, and allowing the witness to give previously undisclosed testimony at trial. Mississippi Rule of Civil Procedure 26(b)(4) provides that “[a] party may through interrogatories require any other party to [1] identify each person whom the other party expects to call as an expert witness at trial, [2] to state the subject matter on which the expert is expected to testify, and [3] to state the substance of the facts and opinions to which the expert is expected to testify and [4] a summary of the grounds for each opinion.” Miss. R. Civ. Proc. 26(b)(4)(A)(i). Additionally, Rule 26(f) provides that “a party who has responded to a request for discovery with a response that was complete when made . . . is under a duty  seasonably to supplement that party’s response with respect to any question addressed to . . . the subject matter on which [a person expected to be called as an expert witness] is expected to testify, and the substance of the testimony.” Miss. R. Civ. Proc. 26(f). We have provided that “[t]he failure seasonably to supplement or amend a response is a discovery violation that may warrant sanctions, including exclusion of evidence.” Hyundai Motor Am. v. Applewhite, 53 So. 3d 749 (Miss. 2011) (citation omitted)

¶15. The Ohazurikes failed to comply with Rule 26. In their original designation of experts, they named Glover as an expert witness and identified the subject matter of her opinions, but failed to state the substance of the facts and opinions to which she was expected to testify or to provide a summary of the grounds for her opinions. Ohazurikes did not provide the Defendants with the substance of Glover’s opinion until the morning of her deposition, five days prior to trial. The Ohazurikes’ disregard for the rules of discovery continued to trial, when they violated Rule 26(f) by introducing for the first time a new opinion without having amended or supplemented their discovery responses. In Hyundai Motor America v. Applewhite, 53 So. 3d 749 (Miss. 2011), we provided that, where a party had failed to amend or supplement its discovery responses with material changes to an expert’s opinion, the trial court’s refusal to grant any relief was an abuse of discretion warranting reversal, because “[w]e do not condone trial by ambush. [The defendant] was entitled to full and complete disclosure of the plaintiffs’ expert testimony. . . .” Hyundai, 53 So. 3d at 759. The introduction of an entirely new lost-profits estimate clearly was a material change to Glover’s opinion, of which the Defendants were entitled to full and complete disclosure seasonably before trial. We refuse to condone the Ohazurikes’ failure to comply with discovery requirements. Accordingly, we find that the trial court’s refusal to grant the Defendants any relief for the Ohazurikes’ failure to comply with the mandates of Rule 26 was an abuse of discretion and, combined with other errors to be discussed infra, warrants reversal.

Those “other errors” will find their way into another post.

Experts appear often in chancery. They testify to the matters like the best interest of children, parties’ and children’s mental and physical health, land lines, valuations, damages, surveys, handwriting, water flow, investments, and on and on. Usually, when an expert is involved, there is a lot at stake, either emotionally or financially, or both.

I have not seen many disputes over the adequacy and/or timing of the expert disclosures. When they happen, though, the results can be cataclysmic. And when they are not cataclysmic at trial, they can turn out to be up the line, as the Ohazurikes learned.

I have refused to allow an expert to testify who was not timely designated 60 days before trial per UCCR 1.10. I even refused to allow an expert to testify where there was no answer at all to the expert interrogatory (the actual answer was to the effect that “None at this time. Timely supplementation will be made.” It wasn’t). But I have not yet had to weigh the adequacy of the substantive questions.

Read this case closely for what it can teach you about what won’t cut it as an expert-witness response, as well as what it can teach you about how to make a record of objections that will do the job on appeal.

THE LATEST ON DISCOVERY GAMESMANSHIP

February 13, 2012 § Leave a comment

Discovery gamesmanship has been the subject of a prior post on this blog. It’s a troublesome phenomenon, not only for the lawyers who have to confront and deal with it, but also for chancellors who have to decide whether, when and how to impose sanctions.  

The most recent pronouncement from our appellate courts came in the case of Williamson v. Williamson decided by the COA on January 10, 2012, at ¶¶ 29-31.

In Williamson, the appellant, Will, argued that the chancellor had improperly assessed him with attorney’s fees for failing to file complete and timely responses to the other side’s discovery requests. Judge Carlton’s opinion disposed of his claim:

¶29.  Additionally, as to Will’s argument that the chancellor erred by awarding Mary attorney’s fees for her costs in filing the motion to compel, we, likewise, find no merit. We recognize the chancellor possesses sole discretion as to whether sanctions should be imposed for discovery violations, and we employ an abuse-of-discretion standard of review when considering a chancellor’s order of sanctions. Williams v. Williams, 43 So. 3d 517, 521-22 (¶19) (Miss. Ct. App. 2010) (citing Hayes v. Entergy Miss., Inc., 871 So. 2d 743, 747 (¶11) (Miss. 2004)). Mississippi Rule of Civil Procedure 37(a)(4) provides:

If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

¶30. The record shows that Will failed to provide complete and timely responses to Mary’s requests for discovery prior to Mary filing her motion to compel. The record also reflects Will provided no adequate reason for his failure to comply. Thus, in accordance with Rule 37, we find no error in the chancellor’s order requiring Will to pay Mary’s attorney’s fees for her cost incurred in bringing the motion to compel. See Russell v. Russell, 733 So. 2d 858, 862-63 (¶16) (Miss. Ct. App. 1999).

¶31. Accordingly, we find no merit to Will’s arguments as to chancellor’s … award of attorney’s fees to Mary.

In this district, attorneys have a long-established custom of trying to work with each other through discovery problems, but sometimes the payback for that civility is abuse of the system. The judges generally view the initial motion to compel as a warning shot resulting in an order to comply, with a second trip to court triggering sanctions if warranted by the proof. I often will impose a $25 per day fine for each day after the court-imposed deadline that a party fails to comply, and I do not limit my sanctions to that. I also use scheduling orders in almost all cases, particularly divorces, and a party who pushes the deadlines and fails to compy risks running afoul of the court on that count.

As Williamson clearly indicates, you play games with discovery at your and your client’s peril. Thankfully, most attorneys in this part of the world have grown past the gamesmanship in chancery court, and for the most part discovery proceeds in an orderly fashion with both sides able to accumulate the evidence they need to present their respective cases to the court in a complete fashion. For those who persist in non-compliance, however, read Williamson and be warned.

DISCOVERY AND THE UCCR

May 2, 2011 § Leave a comment

The MRCP sets out the rules that establish discovery in our courts.

Just as important as the MRCP are the Uniform Chancery Court Rules (UCCR), where some critical discovery provisions reside.  UCCR 1.10 provides:

A. All discovery must be completed within ninety days from service of an answer by the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension. Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.

B. When responding to discovery requests, interrogatories, requests for production, and requests for admission, the responding party shall, as part of the responses, set forth immediately preceding the response the question or request to which such response is given. Responses shall not be deemed to have been served without compliance to this subdivision.

C. No motion to compel shall be heard unless the moving party shall incorporate in the motion a certificate that movant has conferred in good faith with the opposing attorney in an effort to resolve the dispute and has been unable to do so. Motions to compel shall quote verbatim each contested request, the specific objection to the request, the grounds for the objection and the reasons supporting the motion.

I have enforced that 90-day deadline whenever asked to do it.  It’s there, and it’s enforceable.  It’s also there to expedite litigation, which is almost always a good thing for the litigants.

As for the 60-day requirement for disclosure of experts, I posted about it here.

I’ve noticed some younger lawyers in our district not complying with 1.10(B).  To save yourself some trouble, get counsel opposite to email the discovery requests to you so that you don’t have to retype them.

Week before last I had a motion to compel presented that did not repeat the discovery request or response.  Let me assure you that it is always counterproductive to put the judge to unnecessary inconvenience and trouble, particularly when you have not complied with the clear requirement of the rules.

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.

 

THE UNDESIGNATED EXPERT

April 4, 2011 § 3 Comments

Uniform Chancery Court Rule (UCCR) 1.10 states that, “Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.”

The question arises from time to time whether Rule 1.10 requires disclosure where there has been no discovery request asking information about expert witnesses.  The question was answered succinctly in City of Jackson v. Perry, 764 So.2d 373, 383 (Miss. 2000), in which the Mississippi Supreme Court was confronted with a situation in a circuit court trial where the trial judge had allowed the testimony of two expert witnesses who had not been designated under the circuit court rule counterpart to UCCR 1.10.  The high court’s opinion states the law as follows:

“The City and Edwards argue that the trial court erred in allowing Officers Charles Smith and Tim Corbitt to testify as experts without being designated pursuant to Rule 4.04A of the Uniform Rules of Circuit and County Court. Rule 4.04A of the Uniform Circuit and County Court Rules, states that, “[a]bsent special circumstances, the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least 60 days before trial.” The City argues that Perry did not offer any special circumstances, at trial for not having designated either Officer Smith or Officer Corbitt and therefore, the trial judge abused his discretion when he allowed them to testify. The City argues that this Court should rule that the testimony from Officers Smith and Corbitt inadmissible.

“¶ 52. The City’s reliance on Rule 4.04A is misplaced. Rule 4.04A does not stand alone. In order for there to be a violation of a discovery request, there must first be a discovery request. Here, neither party made a discovery request pursuant to Rule 26(b)(4) of the Mississippi Rules of Civil Procedure. Here, the City failed to propound any discovery and conceded there is no discovery violation. The trial court stated that a party “can[not] object to them [Perry] offering it [expert witness] if you don’t ask for it in a discovery request.”

“¶ 53. There was no violation of Rule 4.04A because there was no discovery request pursuant to Rule 26(b)(4).”

If you want to invoke Rule 1.10, you must have made the discovery request for designation of experts.  And on the the flip side, if you’re asked to designate experts in discovery, you’d better do so more than sixty days before trial unless you can prove “special circumstances.”

I recently found special circumstances and allowed the testimony of an expert on less than sixty days notice where the case had been put on a fast track to trial due to exigent circumstances, no order expediting discovery had been sought or entered, and the discovery responses were not due under the rules until the day of trial.

Thanks to Professor Guff Abbott at Ole Miss Law School for the cite.

DODGING THE MRCP 36 BULLET

November 3, 2010 § 1 Comment

What do you do when you discover that you received requests for admission 45 days ago, and you just simply overlooked them?
 
In the case of Martin v. Simmons, 571 So.2d 254, 256 (Miss. 1990), the Mississippi Supreme Court pointed a way out of the dilemma.  It requires prompt action on your part, and the matter is in the discretion of the trial court, but there is a way to avoid your case becoming a fatality due to your negligence.  I could not sum it up any better than the court itself did:  
 
“While a number of jurisdictions with rules analogous to our Rule 36(a) FN1 allow trial courts discretion to allow a shorter or longer time for a party to respond to a request for admissions, see 8 Wright & Miller, Federal Practice & Procedure, § 2257 at 718 (1972); see e.g., Thomson v. Bank, 506 So.2d 1012, 1014 (Ala.Civ.App.1987), cert. den. 526 So.2d 40 (Ala.1987); Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580, 586 (N.D.1981), we have stated that “[c]ourts cannot give or withhold at pleasure; Rule 36 is to be enforced according to its terms.” Sawyer v. Hannan, 556 So.2d 696, 698 (Miss.1990) [quoting Educational Placement Services v. Wilson, 487 So.2d 1316, 1318 (Miss.1986) ].

FN1. “Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow….  Miss.R.Civ.P. 36(a).

“Such admissions, however, are not necessarily irrevocable. Sawyer, 556 So.2d at 697-698 (citing Educational Placement Services, 487 So.2d at 1318). Rule 36(b) provides the procedure to revoke admissions:

“Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission …. [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.  Miss.R.Civ.P., Rule 36(b).

“The Martins made no attempt to withdraw or amend the Requests for Admissions under Rule 36(b); they merely untimely filed the Answers to the Simmons’ Request for Admissions. Essentially, the Martins argue that the filing of a late response to Request for Admissions is the equivalent of requesting withdrawal or amendment of the admissions. The Simmons respond that even if this were true, they have been prejudiced due to the death of Wesley Simmons, a material witness. Cf. Brook Village North Asso. v. General Electric Co., 686 F.2d 66, 70 (1st Cir.1982).

“A number of courts do allow untimely Answers to Requests for Admissions, when to do so would aid in the presentation of the merits of the action and no prejudice would ensue to the party who made the request. See e.g., Aldrich & Co. v. Donovan, 778 P.2d 397, 399 (Mont.1989); Herrin v. Blackman, 89 F.R.D. 622, 624 (W.D.Tenn.1981); *257 Bittner v. State for Use & Benefit of Alaska Laborers, 627 P.2d 648, 649 (Alaska 1981); Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580, 586 (N.D.1981); Latendresse v. Latendresse, 294 N.W.2d 742, 747-48 (N.D.1980); Marshall v. Dist. of Columbia, 391 A.2d 1374, 1379 (D.C.Ct.App.1978); Hadra v. Herman Blum Consulting Engineers, 74 F.R.D. 113 (D.C.Tex.1977); See also, 8 Wright & Miller, Federal Practice and Procedure § 2257 at 719-720 (1972); 4A Moore’s Federal Practice 2d ed., Admission of Facts-Procedure § 36.05(4). Other courts allow untimely answers to a request for admissions when there has been excusable neglect or compelling circumstances. See e.g., Dukes & Barber v. S.C. Ins. Co., 770 F.2d 545, 548-49 (5th Cir.1985); Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir.1966).

“The problems encountered by the Martins in this case could easily have been eliminated if a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b) and if there were justifiable excuse. See Sawyer, 556 So.2d at 698; Educational Placement Services, 487 So.2d at 1318. However, we need not reach the issue whether withdrawal or amendment may be allowed when there is no excusable neglect but a party is not prejudiced because the chancellor was not called upon to exercise his discretion to allow the withdrawal of the amendment of the answers to the admissions under Rule 36(b). See Diversified Communications v. Godard, 549 A.2d 362, 363 (Maine 1988). Since the lower court was never asked to exercise its discretion under Rule 36(b), the trial court properly followed our holding in Educational Placement Services v. Wilson, 487 So.2d 1316 (Miss.1986). We therefore are not called upon to determine if an abuse of discretion occurred and we find the chancellor properly applied Mississippi law to this issue.”

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