Thursday, October 2, 2014

Common Discovery Abuse Games

What goes on in litigation discovery today.

I found a REALLY FASCINATING article in the ABA World journal.

Common Discovery Abuse Games: Who Said Lawyers Don’t Like to Have Fun?

Many cases are won or lost on discovery. Ironically, this key aspect of litigation is typically subject to minimal judicial control, and lawyers are instead often left to comport themselves in the discovery process with civility, honor and integrity. Unfortunately, it appears that lawyers are increasingly encountering discovery abuse in civil litigation, resulting in more and more judges imposing sanctions—including the ultimate sanction of default judgment in the nonoffending party’s favor—for such abuse. This article will discuss the most frequently encountered discovery abuses, as well as the sanctions that have been imposed by the courts as a result of the same.
When Civility Vanishes: Frequently Encountered Abuses
In 2004, University of Georgia researchers surveyed approximately 4,500 Georgia lawyers in an attempt to discover the type and prevalence of discovery abuses encountered by the lawyers.  The researchers compiled the following list of the most frequently reported discovery abuses encountered by the responding lawyers: (1) asserting undifferentiated, boilerplate objections in response to discovery requests; (2) making overly broad and burdensome requests of marginal relevance to the needs of the case; (3) failing to produce documents or redacting documents on “relevance” grounds; (4) making “speaking objections” to coach deponents during depositions; (5) delaying the production of critical documents (or producing in waves) to impede use of documents at depositions or trials; (6) asserting privileges (work product or attorney-client), without a proper basis to justify nonproduction of documents; and (7) parsing document requests so narrowly so as to avoid production of documents that are fairly comprehended by a request. 

Perhaps not surprisingly, the most frequently reported encountered abuses occurred relative to document production. “Document production” abuses are especially frustrating, given that it is often difficult, if not impossible, for an opponent to discover that relevant documents are being withheld. Notably, of the seven “most common” reported discovery abuses, only one abuse involved anything other than written discovery and document production, namely, the “speaking objection” abuse. Fortunately, a lawyer is not left without an avenue of relief if he or she is faced with an opponent’s discovery violation, and courts are increasingly affording relief to “victims” of discovery abuse.
Discovery Abuse in Action 
Under Federal Rule of Civil Procedure 37, which is applicable to bankruptcy adversary proceedings pursuant to Federal Rule of Bankruptcy Procedure 7037, “if a party…fails to obey an order to provide or permit discovery,” the district court may issue orders “striking pleadings in whole or in part,” “dismissing the action or proceeding in whole or in part” and “rendering a default judgment against the disobedient party.”