I have read your articles with interest and respect for some time now; I find them excellent plus.

I have a friend who is acting pro per in a civil case. Suffice it to say she can't afford or get an attorney.

Opposing counsel has made a mockery of discovery by making (putrid) garbage objections to 99% of discovery sent him. He uses every boilerplate objection and has even objected saying some discovery was "unintelligible" when my friend didn't define a name that was the name of the defendants product…

Opposing counsel is clearly abusing the intent of discovery dragging my friend into "Meet and Confer Hell" while knowing that as a pro per, my friend can not get anything more at this point than her costs of filing a Motion to Compel (which she has won) and photocopy costs. On the other hand, and I speak with authority, opposing counsel has created enough work for himself to literally turn a reasonably moderately sized case into a major matter and I would estimate he has made more than $250,000 in fees from his client (no insurance company involved) in 2011.

My point being: There is clearly a wrong here (major discovery abuse and a lack of any good faith) and no remedy.

Am I being naive in thinking something should be done or a remedy created?

 

This is a common problem for pro pers as well as parties who don’t have a lot of money.  It looks hopeless as you are being out muscled by a party who has deep pockets and a lawyer who’s intent is to abuse the discovery process and run up his bills.

So what can you do?  GET THE COURT INVOLVED!!

You need to file a motion to compel further responses requesting a protective order pursuant to C.C.P. §§ 2025.420, 2030.090, 2031.060, and/or 2033.080 and an award of monetary, issue and evidence sanctions.

TELL THE COURT:

1. The facts of the case in detail, including the procedural history of the case.

2. The discovery you are attempting to get.

3. The garbage objections you are receiving.

4. The futility of the meet and confer process.

5. Your good faith responses to opposing party’s discovery.

6. All Motion for Summary Judgment/Summary Adjudication, arbitration, mediation and/or trial dates.

ASK THE COURT TO:

1. Stay all discovery propounded by opposing party until your discovery is complied with.

2. Impose deadlines for discovery responses with a return date to the court to show compliance.

3. Implement a discovery plan and to oversee all future discovery.

4. Rule that all depositions  are to be held at the courthouse with the judge available to rule on all objections.

5. Appoint a Discovery Referee with the opposing party to pay for the vast majority of the referee’s fees. 

6. Award sanctions pursuant to C.C.P. §177.5 (pdf)—up to $1500 in sanctions payable to the court for violation of court order. 

7. Award issue and evidence sanctions.

8. Schedule an early settlement conference.

REMEMBER:  You need to be pro active. You can’t sit back and hope that justice will prevail.

The disdain and hated that can spew from even the most professional of lawyers can be astonishing. At times you wonder where it comes from.

Bombarding one side with hundreds of interrogatories, request for admissions and requests for documents right out of the gate with no rhyme or reason of a discovery plan other than to use Discovery as a weapon.

Opposing counsel being abusive to your client by asking improper, inappropriate and accusatory questions in a mean menacing tone. Thus, making you look ineffective.

Opposing counsel's failure to respond to discovery other than providing garbage objections though the law is quite clear that the discovery requests are appropriate.

The non-offending attorney eventually goes to court and requests a discovery referee and I get appointed. In reviewing the papers, I can usually put the cause of the hostility in one of the following categories:

(1)     The offending attorney has a difficult client and the client expects his hired gun to get his pound of flesh from the other side;

(2)     The offending attorney got caught unprepared and is now using abusive tactics to hide their mistakes;

(3)     It is the strategy of the offending attorney to get you into the gutter because they know how to win there; or, unfortunately,

(4)     All of the above.

Looking at the history of the discovery battle before me, I see the offending attorney being difficult, interjecting improper objections, raising the tone of the conflict and playing a deflective game. Despite the earnest attempts of the non-offending attorney not to engage, he or she eventually ends up fighting the offending lawyer in the gutter throwing insults and accusations in a high volume attempt to stop the madness. By the time the matter reaches the court, the conflict has reached a fevered pitch.  The court ends up throwing up its hands saying “Pox on both of your houses, I am sending you to a Discovery Referee” because all the court see is two very unprofessional attorneys and YOU ARE ONE OF THEM!

This conflict costs your client money in attorney fees, it extends the time of the case and it makes it difficult to settle the case without paying a premium. So what do you do?

Your first priority is to protect your client. Your second priority is to protect your reputation. Neither can be accomplished if you let the discovery conflict spiral out of control. So the answer is to nip the conflict in the bud and be PROACTIVE!

(1) Every communication with the offending attorney needs to be in writing. Don’t go “tit for tat” in the e-mails. WAIT before you hit that send button! Better yet, write a letter on your firm’s stationary and send it as an attachment. That will give you time to cool off.  Catalog every unprofessional, abusive tactic in a factual tone. Hint: Write every communication as if the Judge is going to read it.

(2) Don’t take it on the chin. If the objections are garbage and you are entitled to a response, then file the motion. Start setting a record for issue, evidence and terminating sanctions. Keep filing those motions. It only hurts your client if you don’t obtain the discovery you are entitled to.

(3) If the abuse is happening during a deposition, suspend the deposition and go to court and ask for a discovery referee to sit in on the depositions. In the alternative ask that the depositions be held at the courthouse with the Judge on standby for rulings.

(4) Ask the court for an early settlement conference or suggest mediation to the offending counsel. This may sound counter intuitive, but the conflict may be a symptom of the need to resolve the case.

(5) Ask the court for a discovery referee for all purposes with the request that the offending party be responsible for the referee’s fees due to their abusive behavior.

The Moral of the Story: You are an advocate–Go Advocate!

When I look back on this case,  I realize that the moment defense counsel used the word "Bitch" it became the turning point of the case. These two well-respected attorneys’ hostility toward one another drove the case. There were no more professional courtesies and the parties took extreme positions in their settlement negotiations. The case eventually went through a lengthy bench trial and appeal process that lasted years before plaintiff recovered an eight-figure judgement.

The moral of the story here is "you gotta know when to hold’em and know when to fold’em."  In other words, is your discovery battle worth it in the long run?  In this case, a simple, sincere apology could have put the case back on track, possibly leading to settlement and I may never have been appointed to wear the black and white striped shirt.  

A few months back I received an e-mail from a court reporter regarding a very unpleasant incident that occurred in a deposition. It went like this:

So...during questioning the attorneys were apparently getting to a very sensitive area of inquiry -- and [Attorney #1] had already argued with all of the other attorneys -- so, he stared me straight in the eye and said, "God damn it, when you're asked to read a question back, you don't just read a question, you read the answer also, do you hear me? Now I've got to object and say it's asked and answered when if you would just do your fucking job I wouldn't have to do so. When it happens again, you better read it the right way."

The court reporter advised me that she admonished the attorney for speaking her that way and left the room. She eventually went back in and finished the deposition.  

Besides the breach of Section 9 of the California State Bar Attorney Guidelines of Civility and Professionalism (pdf),  this was just plain stupid on the part of the attorney. His final outburst had come after he had constantly interrupted the witness, interjected himself while other attorneys were asking their questions and argued at the top of his lungs with numerous counsel. The transcript was a disaster. It would have been utterly useless in any motion for summary judgment and probably at trial. If it was used at trial, the words by Attorney #1 would come back to haunt him as you can bet opposing counsel made sure that  the Judge assigned to the case would know what happened.  Also, you know that opposing counsel would make every attempt to have that portion of the deposition read in front of the jury.

The moral of the story is that court reporters are the caretakers of the deposition. Their job is to accurately record all statements made in the deposition for later review by attorneys, judges and appeals courts. It does nobody any good if the court reporter can’t get down an accurate rendition of the deposition. So, at the beginning of the deposition, advise the court reporter and all parties in the room that the court reporter is the “Goddess of the Transcript” and she is to immediately tell you all when she can no longer get an accurate rendition of the deposition. If the yelling, hostility and abuse continues, then recess the deposition and go to court and get a protective order and/or request a referee be appointed to sit on the continued deposition. See C.C.P. §§2025.420 and 639(a)(5). Do it sooner than later because your goal is an accurate transcript.