Saturday, December 14, 2013

Score One for the Little Guy (or Gal)! -- Fighting Abusive Discovery

A few years ago I had a student named Betty who, after her husband's death, decided to go to law school because she wanted to help people.  She mainly handles domestic relations cases these days.  She called about an opponent who had served a ton of discovery on her in a relatively modest divorce case.  The opposing counsel liked to call Betty up and ridicule her client (the wife), tell her how he was going to make Betty's client regret "fighting" his demands, etc.

I suggested to Betty something I've come to teach all of my civil procedure students. Almost every state's rules of court have a section after the general breadth of discovery, modeled on Rule 26, that sets forth the objections a responding party can make.  You know, objections like overly broad, unduly burdensome, etc.   The one part that a lot of folks miss is the language in which, if the court is asked, it can limit discovery in light of the "party's resources" and the scope of the case.  I suggested to Betty that she file objections to the discovery.  I also suggested, for good measure, to file a motion for protective order seeking to protect her client from discovery that would drain her resources.   My colleague, Professor Kathleen McKee, concurred with my advice.

Professor McKee and I were tickled to hear the result of the hearing.  The court granted Betty's objections and motion.  Moreover, she took our advice and rather than argue with opposing counsel when he was seeking to intimidate her, to hold her comments for presentation to the court.  The judge saw what was going on in the case and put an end to it. 

I'm not surprised by this scenario because I've seen it over and over.  Too many lawyers like to employ litigation devices like discovery not for their intended purposes, but rather to seek advantages over clients that lack resources.   I am surprised that more lawyers do not rely on the provision in Rule 26 (if in federal court) or the state equivalent allowing the court to limit discovery in light of the factors noted.  We all know that discovery is one of the main reasons that the cost of litigation has become prohibitive.  Some bemoan that fact and wish for new rules limiting discovery.  My suggestion would be to, like Betty, use grounds already in the Rules and give judges the opportunity to help keep opposing counsel in check.  In my experience, most judges will aid a party (and counsel) who seek relief.

1 comment:

  1. A few years ago I had a student named Betty who, after her husband's death, decided to go to law school because she wanted to help people. Nottinghill Solicitors

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