Discovery Do’s and Don’ts from A Reformed Black Hat (Part 3)
This content was originally published as content for a CLE given for the Institute of Continuing Legal Education in Georgia, entitled Litigating the Plaintiff's Employment Law Case on September 23, 2016. This is an excerpt from that material.
In Part 1 of this series we explored three of the biggest issues we confront on a regular basis talking with clients and prospective clients. In Part 2 we examined the importance of a proper meet and confer and sensible case management. In the next installment we discuss the importance of "trust but verify" when it comes to discovery.
Don’t accept answers without challenging them first.
One thing that is not a secret is that BigLaw is busy, overworked, and exhausted. Often times, the due date for Responses to your Request for Production sneaks up on them. For a savvy BigLaw associate, it is an art form to create responses with minimal information or input from the client. Such “creative” responses bear certain tell-tale marks, such as being littered with objections that don’t seem to make much sense.
For instance, you may see an objection on the grounds of the attorney-client privilege and the work product privilege, and then state “subject to the foregoing” they are producing documents any way. Wait… what?
Too frequently, this type of response goes unchallenged. Rule 26(g) makes clear that by signing a discovery response, a lawyer is making a certification that the answers and objections given were warranted and not offered for some sort of impermissible purpose. How could blanket objections be warranted or offered for any purpose other than causing delay, or increasing the cost of litigation (by forcing you to sort out the real answer later)?
If this behavior is ever going to stop, it will be because you stop permitting it to go unchallenged. Consider filing a motion under 26(g) and seek sanctions for the cost associated with clearing up the answer. My sense is it won't take many of these to finally relegate boilerplate objections to the trash heap of legal history.
Don’t hesitate to demand evidence to support the claims.
The old saw of “undue burden and expense” crops up in both responses and formal letters about discovery, and it, too, is almost always a by-product of creative counsel forced to do some guesswork. BigLaw’s playbook suggests that anytime ESI is sought, this objection can be lodged, unless the information can be obtained with one phone call to the client. If not, then it is ipso facto too expensive and burdensome. This is utter nonsense, and should not be tolerated by the bench or the Bar (though I think it is tolerated by both routinely).
An easy way to undermine this attempted subterfuge is to simply ask opposing counsel how much the discovery in question costs to obtain. “Just give me a number,” you should say. “I’ll wait.” In my experience, this will often be followed by stammering, double-talk, silence or some combination thereof. Individual results may vary.
But the "what's the number" question goes straight to the heart of whether there is a real problem, or whether the objection was made without consultation with a vendor, the client, or a qualified resource who could reach such a conclusion. The reality is that most of the discovery you will seek is not unduly expensive or burdensome; in fact, technological advances are making it easier and less expensive every day. Undue burden and expense is a primitive weapon for many lawyers who don't understand the technology. Don’t be that lawyer.
Moreover, a plausible reason for any ‘undue’ burden or expense (to the extent that it does exist and counsel can produce an estimated cost) may be their client’s retention and archival processes that were developed circa 1993 and have not been updated or amended to reflect modern technology advancements. That’s a ‘them’ problem. Don’t let them make it a ‘you’ problem. You’re simply requesting the information you need and that the Rules entitle you to obtain.
Don’t take their word for it when it comes to preservation efforts.
Here’s another dirty little secret: defense counsel often just has to guess at what their client did in discovery, but will later assert it as fact. When outside counsel has been left out of the loop on what was done to preserve and collect documents (and this happens much more than you might imagine), they tend to fill in the gaps with assumption and conjecture. Understand, I am not suggesting this is occurring in a deliberate attempt to mislead you; it is being done because the corporate client and the defense counsel simply aren't addressing the issue.
Most outside counsel in lower value litigation aren’t participating in the legal hold process, and may not even be able to answer the question “was a litigation hold issued?” Even fewer are involved in the actual collection of electronic information. And fewer still can cogently or competently explain how the data was collected.
You have to be careful here, because a gifted communicator can take a simple concept and make it sound as if it really is complicated and expensive. But force your opponent to answer your questions – don’t be afraid to keep asking them to explain it and provide price estimates for everything along the way. You will likely be surprised at how inexpensive discovery actually is; in fact, the main expense is going to be for your adversary to pay associates to review documents.
But surely there is nothing unduly burdensome about their business model, right?