Transcript Professionalism And Discovery (Or, What No One Ever Told

Professionalism And Discovery
Sagamore American Inn of Court
Thurgood Marshall Team
February 11, 2009 Presentation
Purpose of Discovery
• The purpose of discovery under the
Federal Rules of Civil Procedure is to
provide a mechanism for making relevant
information available to litigants.
– Pope v. Mendenhall , 1994 U.S. App. LEXIS
3867 (7th Cir. 1994).
Purpose of Discovery
• Mutual knowledge of all the relevant facts
gathered by both parties is essential to
proper litigation.
– Pope, 1994 U.S. App. LEXIS 3867 (quoting
Hickman v. Taylor, 329 U.S. 495, 507 (1947)).
Purpose of Discovery
• By affording parties a reasonable
opportunity to discover information that is
relevant to their action, our rules seek to
avoid surprise and the possible
miscarriage of justice.
– Brown Badgett, Inc. v. Jennings, 842 F.2d
899, 902 (6th Cir. 1988).
Purpose of Discovery
• “The Indiana rules of discovery are
designed to allow a liberal discovery
procedure, the purposes of which are to
provide the parties with information
essential to litigation of all relevant issues,
to eliminate surprise, and to promote
settlement.”
– Pierce v. Pierce, 702 N.E.2d 765, 767 (Ind. Ct.
App. 1998).
Self-Executing
• “Discovery is designed to be selfexecuting with little, if any, supervision of
the court.”
– Pierce, 702 N.E.2d at 767.
Specific Objections
• A party must support its objections with
specific reasons.
– McGrath v. Everest Natl Ins. Co., 2008 U.S.
Dist. LEXIS 47999, at *25-26 (N.D. Ind. Jun.
19, 2008); Graham v. Caseys General Stores,
206 F.R.D. 253, 254 (S.D. Ind. 2002).
Specific Objections
• Simply stating that a discovery request is
vague or ambiguous, without specifically
stating how it is so, is not a legitimate
objection to discovery.
– Williams v. Taser Intl, Inc., 2007 U.S. Dist.
LEXIS 40280, at *8 (N.D. Ga. June 4, 2007)
(citation omitted).
Specific Objections
• “A party cannot meet its burden by
invoking the same baseless, often abused
litany that the requested discovery is
vague, ambiguous, overly broad, unduly
burdensome or that it is neither relevant
nor reasonably calculated to lead to the
discovery of admissible evidence.”
– McGrath, 2008 U.S. Dist. LEXIS 47999, at
*26.
Privilege-Based Objections
• Claims of privilege must be made and
sustained on a question-by-question or
document-by-document basis. Absent an
articulation of specific reasons why the
documents sought are privileged, the
information is discoverable.
• Brown v. Katz, 868 N.E.2d 1159, 1167
(Ind. Ct. App. 2007).
Privilege-Based Objections
• Any objections based on the attorneyclient privilege or the work product
doctrine must be accompanied by a proper
privilege log.
– Trustmark Ins. Co. v. Schuchman, 2003 U.S.
Dist. LEXIS 9315, at *19 n.3 (S.D. Ind. Jun. 2,
2003).
Rules of Professional
Responsibility
• Rule 3.4 – Fairness To Opposing Party
And Counsel
• A lawyer shall not:
– (a) unlawfully obstruct another party's access
to evidence or unlawfully alter, destroy or
conceal a document or other material having
potential evidentiary value. A lawyer shall not
counsel or assist another person to do any
such act;
Rules of Professional
Responsibility
• Rule 3.4 (cont.)
• A lawyer shall not:
– (b) falsify evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness that
is prohibited by law;
– (c) knowingly disobey an obligation under the rules of
a tribunal except for an open refusal based on an
assertion that no valid obligation exists;
Rules of Professional
Responsibility
• Rule 3.4 (cont.)
• A lawyer shall not:
– (d) in pretrial procedure, make a frivolous
discovery request or fail to make reasonably
diligent effort to comply with a legally proper
discovery request by an opposing party . . . .
Rule 3.4 (Cases)
• In the Matter of Kelly, 655 N.E.2d 1220
(Ind. 1995)
• Facts
– Client retained Kelly to pursue a medical
malpractice claim
– Kelly filed a proposed complaint for
damages with the Indiana Department
of Insurance
Rule 3.4 (Cases)
• Kelly (cont.)
– Opposing counsel sent interrogatories to
Kelly, but Kelly failed to send them to his client
or otherwise respond despite at least two
subsequent letters from opposing counsel
requesting a response.
– Opposing counsel filed a motion to compel.
Rule 3.4 (Cases)
• Kelly (cont.)
– Trial court ordered Kelly’s client to answer the
interrogatories and warned that the
proceeding would be dismissed with prejudice
if, within 45 days, a response was not
forthcoming or if the client did not provide
opposing counsel with medical authorizations
for obtaining the client’s medical records.
Rule 3.4 (Cases)
• Kelly (cont.)
– Opposing counsel had to compel submission
of the answers to a second set of
interrogatories sent to Kelly.
– Kelly failed to provide the medical
authorizations related to his client’s medical
records.
Rule 3.4 (Cases)
• Kelly (cont.)
– The trial court entered an order dismissing the
case with prejudice, finding that Kelly’s client
failed, among other things, to comply with
court orders regarding discovery.
Rule 3.4 (Cases)
• Kelly (cont.)
– In a subsequent disciplinary proceeding, the
Indiana Supreme Court held that “by
disregarding opposing counsel’s repeated
discovery requests and not, in a timely
manner, complying with court orders
regarding discovery,” Kelly violated Rule 3.4
(c).
– 180 day suspension (other violations found)
Rule 3.4 (Cases)
• In the Matter of Relphorde, 644 N.E.2d
874 (Ind. 1994)
– Relphorde found to have made misstatements
in interrogatories and to have inordinately
delayed responses to discovery motions in
violation of Rule 3.4(d).
– 60 day suspension (other violations found)
Rules of Court
• FRCP 37(a)(2)(A):
– “If a party fails to make a disclosure required
by Rule 26(a), any other party may move to
compel disclosure and for appropriate
sanctions,” provided that the movant certifies
that it first attempted to confer with the side
not making the disclosure.
Rules of Court
• FRCP 37(a)(3)
– “an evasive or incomplete disclosure, answer,
or response is to be treated as a failure to
disclose, answer or respond.”
Rules of Court
• FRCP 37(c)(1)
– A party who fails to disclose, provides false or
misleading disclosure, or refuses to admit
information required by Rule 26(a) without
“substantial justification” may be sanctioned
unless such failure was “harmless.”
Rules of Court
• FRCP – Sanctions
– Sanctions that the trial court has discretion to
impose under Rule 37(c) include the payment
of attorney’s fees, designating certain facts as
established, preventing the disobedient party
from supporting or opposing designated
claims or defenses or “introducing designated
matters in evidence,” and striking pleadings.
Rules of Court
• FRCP – discretion to sanction
– Although the court “need not make explicit findings
concerning the existence of a substantial justification
or the harmlessness of a failure to disclose,” the court
may consider the “bad faith or willfulness involved in
not disclosing the evidence at an earlier date.”
• David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003).
Sanctions
• Lucas v. GC Services, L.P., 226 F.R.D. 328
(N.D. Ind. 2004)
– Background – recipients of dunning letter
brought class action suit against debt
collector, alleging that it violated the Fair Debt
Collection Practices Act.
Sanctions
• Lucas (cont.)
– Chronology of discovery dispute
• Jan. 30, 2004, plaintiffs filed motion for class cert.
• Feb. 25, 2004, plaintiffs served discovery on
defendants (requests for admission, interrogatories
and requests for production of documents)
– the majority of this discovery was relevant to the class
certification issues
• Apr. 21, 2004, defendants responded to discovery
Sanctions
• Lucas (cont.)
– Chronology of discovery dispute
• June 10, 2004, plaintiffs filed their first motion to
compel (seeking more complete responses/info)
• June 24, 2004, defendants filed a cross-motion to
compel because the plaintiffs did not verify the
answers to interrogatories propounded by
defendants
• August 6, 2004, court denied both motions to
compel for failure to comply with Local Rule 37.1
Sanctions
• Lucas (cont.)
– Chronology of discovery dispute
• Sept. 2, 2004, defendants filed motion to dismiss
plaintiffs’ amended complaint
• Sept. 22, 2004, plaintiffs renewed their June
motion to compel because defendants still had not
corrected deficient discovery responses
– Defendants’ position was that plaintiffs’ original discovery
was rendered moot by the court’s August 6 order
• Oct. 5, 2004, defendants filed a motion to stay
discovery until after court rules on motion to
dismiss
Sanctions
• Lucas (cont.)
• Court’s view of defendants’ conduct in
objecting/responding to discovery:
– The responses were “egregiously evasive and
incomplete”; examples:
• defendants objected to a request to admit that the
designation “867-01” (a number sequence that
appeared on the dunning letters attached to the
complaint) was a “form number” because the term
“form number” was vague and ambiguous.
Sanctions
• Lucas (cont.)
– Other examples of “evasive”
objections/responses:
• Despite plaintiffs attaching photocopies of dunning
letters sent by defendants and inviting defendants
to review the originals at their convenience,
defendants denied requests to admit the number of
persons to whom the form letters were sent on the
grounds that the exhibits “did not accurately reflect
the font print on the letters” sent by defendants.
Sanctions
• Lucas (cont.)
– Other examples of “evasive”
objections/responses:
• Defendant refused to answer a request for
admission regarding its net worth on the basis that
the term “defendant” was vague and ambiguous
(and then stated that it would be willing to provide
this information if a class is certified)
Sanctions
• Lucas (cont.)
– Other examples of “evasive”
objections/responses:
• Defendants stated that they could not determine
who authorized, approved, or was aware of the
form letter sent to plaintiffs because it was
developed over a substantial period of time.
Sanctions
• Lucas (cont.)
– Other examples of “evasive”
objections/responses:
• Defendants claimed that virtually every document
requested by plaintiffs, from the technical
specifications for paper, ink and manuals, and
other memoranda setting forth instructions for
compliance with the Fair Debt Collection Practices
Act and pre-existing organizational charts for
defendants, were protected by the attorney-client
and work-product privileges.
Sanctions
• Lucas – ruling on motions:
– Magistrate Judge Rodovich granted plaintiffs’
motion to compel, denied defendants’ motion
to stay, and ordered sanctions against
defendants as follows:
• certain requests for admission were deemed
admitted;
• defendants were given 10 days to respond to all
requests to which they categorically objected; and
• defendants were ordered to pay plaintiffs’
attorney’s fees related to the discovery motions
QUESTIONS?