Broad pretrial discovery is one of the key features of the American legal system, and it’s intended to avoid the problem of “trial by ambush” - where one side introduces surprising evidence at trial that the other side has never seen before. But the process of pretrial discovery is notoriously expensive and frustrating for both lawyers and the parties. There are abuses on both sides, with lawyers who use the tools of discovery to harass their opponents on one side, and obstructionists on the other. Discovery often becomes a zero-sum game, and in some cases, the costs of discovery outstrip the underlying amount in controversy. Worse, discovery disputes can turn into a case-within-a-case to the extent that both sides almost forget what the case was originally about.
In my experience, almost all of the problems we associate with discovery result from the breakdown of the principle of cooperation that is enshrined in our rules of discovery. So, what should be done when one’s opponent refuses to cooperate, or even acts in bad faith? Is it ever a benefit to be obstructionist? Is the best reaction to obstructionist counsel to go scorched-earth with discovery requests?
Obstruction in discovery can arise from several causes. At some firms, obstructionism seems to be part of an unspoken discovery playbook. Against an unmotivated or incompetent opponent this strategy could succeed, but it’s never safe to underestimate one’s opponent, and I’ve seen the obstructionist strategy backfire on multiple occasions. [1. In one famous case, a judge imposed sanctions on the counsel, ordering his firm to create training videos regarding the impropriety of ubiquitous deposition interruptions, “form” objections, and coaching witnesses.]
Ultimately, obstructionist tactics undermine the litigation process and are a detriment to your clients, the court, and yourself. With obstructionist actions you also risk giving up more than you were trying to hide in the first place. If opposing counsel files a motion to compel, and the judge finds in their favor based on your tactics, you may end up turning over more than the opposing party was initially seeking.
Killing Them with Kindness
I confronted obstructionist opposed counsel regularly in my practice, and I resolved to cooperate harder with fractious opponents. I considered that there was a chance that my opponents would change their tactics, but if they continued to obstruct, my record of cooperation would be very helpful when it came time to seek assistance from the judge. In one such case, despite opposing counsel’s extremely rude and abrasive behavior, I presented him with several options for conferring with me to resolve a discovery dispute: we could meet at my office, his office, or at a neutral location. Alternatively, we could have a phone conference. Though I hoped he would accept and we could quickly resolve the issue, I expected that he would refuse. I also knew, however, that the judge would not look kindly on him if he did. Even though I was expecting failure, I presented the options knowing I’d either get it resolved out of court, or that the court would likely rule in my favor due to my willingness to cooperate. Ultimately, the discovery dispute ended up before the court, and I was awarded fees.
In general, I highly recommend this strategy, no matter which side you’re on. Show that you are willing to cooperate, and mean it. If I ever requested a hearing or filed a motion, I wanted it to be clear to the judge that I had tried in every way to resolve the issue amicably beforehand. And, most of the time, I was able to resolve discovery issues. Something about sending a well-crafted letter outlining the problems and requesting an in-person conference to discuss a resolution tends to induce cooperation, either because it becomes clear that you are serious about getting what you need or because it is a positive gesture. Either way, cooperation is almost always a win-win or a win-lose (i.e., you win, they lose). I didn’t file many motions to compel, but I won every one that I filed, and I was awarded fees each time. I can’t think of a single instance where a cooperative approach resulted in a lose-lose or a lose-win scenario. (For more, see my 3 Ways to Get What You Want in Discovery post.)
Pushing Hard Is Good, Most of the Time
It is also important to note the distinction between being assertive about discovery and abusing the rules of discovery. Sometimes legitimate and wholly warranted discovery will feel abusive to your opposing counsel. In my practice, my opponents would regularly complain that they had never heard of an attorney asking for the things I was asking for in discovery. I wanted to say “welcome to the new reality,” but instead I calmly pointed to the rules of civil procedure and case law showing that my requests were authorized. I endured their criticism and didn’t concern myself with it because I knew that my requests were narrowly tailored to the specific discovery that I required to prove my client’s claims and prepare for trial. But I have heard stories of attorneys who use e-discovery as a weapon and as a tool driving up the other side’s costs, requesting more than is necessary or warranted in an effort to push the opposed party over budget or drown opposed counsel in requests they can’t handle.
Abuse of the discovery process isn’t limited to requesting parties; regardless, it distorts reality to divide the world into “request parties” and “responding parties.” All litigants play both roles, or should. This recognition should help every litigant to realize that obstructionist or scorched-earth strategies are ultimately self-defeating and that cooperation is the only option for long-term success.
The cooperative strategy pays off most richly when it is mutual. Even in cases with bitter disputes between the parties, there’s no reason for counsel to be at odds with one another. I can’t recommend cooperation highly enough. Even if you don’t like cooperating with roguish opposing counsel, doing this always helped me get better outcomes for my clients. So whether your first instinct is to be obstructionist, or if you are dealing with an obstructionist opposed counsel, consider cooperation as the path to the best outcome for your client.