Professionalism And Discovery

Sagamore American Inn of CourtThurgood 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 self-executing 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 attorney-client 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?