EP 707: Navigating Discovery Obstruction in Modern Litigation Part 1

Episode Notes

Transcript

Announcer:

Welcome to The Jury Is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney Erich Vieth.

Erich Vieth:

Welcome to another episode of The Jury Is Out. I’m Erich Vieth.

Tim Cronin:

I’m Tim Cronin.

John Simon:

I’m John Simon.

Erich Vieth:

Today we’re going to discuss ways to deal with discovery obstruction.

Tim Cronin:

The most frustrating part of our every day of our jobs in my experience, because we’re dealing with it constantly.

John Simon:

Well, and I think it … I don’t know about you guys, but it seems to be occurring more and more. And not just you file a motion and then obviously they object to everything under the sun. It’s common. It’s normal to file 25 or 30 interrogatories or requests for documents and literally, literally get an objection. It’s rare that you don’t get an objection to one of them.

Tim Cronin:

And general objections, which are against the rules and then paragraphs of specific ones and you don’t, and then nothing’s answered.

John Simon:

So the thing to me, and this is a topic that I’m very passionate about because it gets frustrating. And the part to me that is most frustrating is we will … I can’t tell you how many times in the last two or three years we have gotten orders from a court ordering compelling the other side to produce certain documents that witnesses under oath have already testified that they have. And weeks go by and they’re not produced. And then we’re back up in court and then we end up filing a motion for sanctions. And we have cases right now. I have more than one right now where a sanction order has been entered and we still don’t have the documents. And the sanction is, I don’t know what it is, but-

Tim Cronin:

There’s a wide range available depending on what was done and how well you documented it. And the whole point is justice system doesn’t work without discovery being conducted the way it’s supposed to be conducted, which is a full, fair disclosure of information. It’s not supposed to be gamesmanship. There’s a quote from some federal court that we put at the top of all of our motions to compel. This is not supposed to be a game of hide the ball, et cetera, et cetera, where you make your opponent jump through one hoop after another.

John Simon:

And I think it’s, I don’t want to say losing end, but we’re the victim of it on the plaintiff’s side most often because-

Tim Cronin:

We don’t have the info.

John Simon:

Right. We don’t have the info. The vast majority of discovery in most of our cases is coming from the defendant to us because they’re sitting on it. We don’t have it. Our discovery consists most often of a set of medical records. We can give an authorization and they can get them. It’s maybe a couple photos and some medical records- They already have our client’s

Tim Cronin:

Social media accounts. They see everything

John Simon:

Online. So it’s more than frustrating. There’s so much time and effort and energy and resources devoted to it. And it just makes me think, I’m convinced. You’d have to really work hard to unconvince me. We’re not producing anything. No matter what you ask, no matter what the court rules, we’re still going to drag our feet. And we think our chances would be better off with getting a sanction of some kind and not

Tim Cronin:

Producing. I think it’s client insurance company driven. I at least want to believe that. And the obstruction comes in different forms. Delays, hiding or distorting relevant evidence, coaching witnesses not to answer how to answer.

John Simon:

Well, that’s a whole nother podcast

Tim Cronin:

There,

John Simon:

The coaching

Tim Cronin:

Of the witness. But it’s part of to obstruct Erich, what do you think?

Erich Vieth:

I want to say something.

Tim Cronin:

Yeah. It’s going to get a word in with John.

Erich Vieth:

Well, this is some passion. So I handle cases on both sides. I represent a large corporation in some cases and I represent plaintiffs in civil rights cases. And I think on the defense side, I’m guessing, because I think this is really an important thing. Why is this happening? Is it people being mean-spirited, trying to violate the rules? Or is it defensive law? You’ve heard of a defensive medicine where they pile up exams, more x-rays, more of this, more of that. And on the defense side, I’ve noticed, and it’s really shocking when you step into this. I used to be doing defense cases only. I was away from it for a long time. I do a few now. And there’s layers of supervision is what I should say. People looking over your shoulder and then people looking over those people’s shoulders. And I wonder whether it has to do with that.

Is that like you don’t want to have somebody second guess you. Whereas when you represent plaintiffs, like in this firm, you’re calling the shots. You’re deciding what needs to be done. You do it.

Tim Cronin:

And we know if there’s something so bad that we wouldn’t want to take the case. Look, we have the option to not take a case. True. And so if we do our due diligence, and if there’s something that is case ending, we can decide not to take it. The other side isn’t in that position. And there’s competition, both the general competitive nature to try to win.

John Simon:

It’s not, like you say, second guessing. I’m talking about situations where we’re not … There’s no voluntary disclosure. I mean, people aren’t like, say, here’s a box of stuff. Well, there’s rule 26 disclosures. Well, rule 26. But I’m talking about situations, Erich, where we have identified … I rarely … We’ll send out our discovery. I don’t call up any motions to compel discovery until I’ve taken some depos. And in those depos, I document what they have, where it’s at, who keeps it, how long they have it, how it’s accessible. Is it online? Is it burdensome? Is it not burdensome? How many copies? Who’s involved? All of that. So that when we go up to court for a motion, we have testimony from the defendant’s corporate representative saying, yes, we have these. Here they are. Here’s what they’re called. Here’s how long we keep them. Here’s how easy it is to come.

How easy it is to get them. And then the court orders them to produce them with some limits or whatever, and we still don’t get them.

Tim Cronin:

And you’re already put at a disadvantage because your earlier discovery requests, especially when it covered what you established in the depo was supposed to be produced. And then you took a depo without the benefit of those documents. And then you’ve developed a record where in Missouri, for example, your corporate rep depo, you can’t call that person live. So it’s just in the tank. So I mean, here’s maybe-

Erich Vieth:

Well, can I ask- It’s gotten worse. Much worse. I’ve been around the longest. Abe Lincoln and I used to talk about this back at the office. It seemed like you get a few back in the ’80s, a few here and there from even defense attorneys. And now it’s just … I don’t know what the percentage is, but I was shocked a couple years ago. There’s a firm that involves an attorney named Bill Helmuth, and he actually answered my interrogatories. Made you nervous

John Simon:

Probably.

Tim Cronin:

I had a case recently where all my interrogatories were answered without objection and it was so refreshing. They must feel pretty good about the defending this case.

Erich Vieth:

That would make me

Tim Cronin:

Nervous. Yeah. So a couple things. It seems like in almost every single case now, we are not being told about the insurance and lied to about the insurance and extra layers of cover. John, how many times in the last

John Simon:

Case? Every time. It’s

Tim Cronin:

Every case.

John Simon:

And here’s another thing for our friends on the defense side, and good lawyers recognize this, and I don’t think this is lawyer driven. I think it’s client driven. I

Tim Cronin:

Think it’s party driven and insurance company.

John Simon:

Party and insurance company. But so I would say the last 10 times I had the other side intentionally withholding documentation or information in violation of a court’s order, guess what? That turned out really, really bad for the defense. Not disclosing the insurance, the value of that case went up tenfold. It settled for 10 times more.

Tim Cronin:

And it’s especially when they try to elicit demands for the misrepresented. And that’s what happened in that case.

John Simon:

Right. We went on for … And I don’t need to talk about the case or the amount it resolved for, but we went on for two years litigating the case with several misrepresentations that they had a certain amount of coverage. It was like $2, $3 million. The court

Tim Cronin:

Orders to produce it or-

John Simon:

Court orders to produce it. Nothing was produced. And then right before trial, we find out that it wasn’t two, it was 15. And then they’re talking to 35. And then so all of a sudden we’re talking about … They’re literally talking to us about making a demand for 15 million. A policy limit demand

Tim Cronin:

Repeatedly.

John Simon:

And guess what? We find out that that company had- Wasn’t

Tim Cronin:

It hundreds of-

John Simon:

$500 million in coverage. Okay. And so things did not work out well for that defendant in the case.

Tim Cronin:

Case we tried a few years ago, John. If you remember, they told us they only had self-insured throughout the whole litigation despite court orders. And then suddenly they said, oh no, we have a primary policy on top of that of five. So there’s a total of 15. And it turned out right before trial, we found out there was $250 million of insured. And I’m encountering it in every case.

John Simon:

So the only way out of this is through the courts. That’s it. If the court is not willing to do something meaningful to curtail this, to stop this from happening, it’s going to keep happening. But here’s the thing, and tell me if I’m missing the point on this, my impression is that there’s this stigma of, oh, you filed a motion for sanctions. Yes. Oh my God, you filed a motion for sanctions. I’m not going to sit on my ass and let my client get screwed over. When I know there’s information out there and they’re violating a court order, you’re damn right. I’m going to file a motion for sanctions. You have an obligation to call them. And I would encourage everybody listening that they should do the same.

Tim Cronin:

Don’t file them lightly.

John Simon:

We don’t file them lightly is correct. But I’m just shocked. I didn’t file them hardly as often early in my career because this didn’t happen as much.

Tim Cronin:

Up until a few years ago, I would say you had a general rule at this firm that we were not to file motions for sanctions without specific discussion and approval from you. And we almost never did. Almost

John Simon:

Never did.

Tim Cronin:

And now in the last few years, it has become unfortunately regularly necessary.

John Simon:

And we’re doing it in situations just so everybody’s clear where we’ve already argued it. The court has ordered that certain information be produced within a certain time.

Tim Cronin:

Multiple times.

John Simon:

And then we go back up, not with a motion for sanctions, but we’ll go up a second time. Judge, we’re here, you ordered that this be produced and they didn’t. And then we’ll wait another 10 days and we still don’t have it. Well, what do you do? Do you pack up the 10th and say, “Well, okay,” to your client, find somebody else or …

Erich Vieth:

John, in a lot of these cases, do you know that something exists that they’re not giving you or do you not know whether it exists? And you’re trying to get somebody to do their job and look through the records and determine, and it might be somebody who’s lazy or-

John Simon:

It is both, but in the vast majority of cases, we have already established through the other side’s testimony, through their witnesses, that these documents exist, that they’re retrievable, that they’re still around. We’ve talked to them about the type of information that’s contained in the documents. And yet, as we sit here today, I can think of two cases where that exact scenario is already unfolded, where we’ve been to court, got the motion to compel, and we went up a second time, and we still don’t have the documents. We haven’t filed a motion for sanctions yet, but the court ordered them to be produced. They didn’t produce them. We went back. The court gave them a certain number of days to produce them, and we still don’t have

Erich Vieth:

Them. We’re not naming names, but do you suspect that it’s the attorney who’s trying not to produce this, or is it the company that’s keeping the attorney in the dark? Sometimes you got a sense of where the problem is. It’s a

Tim Cronin:

Situation, Erik, and I think it’s a combination. Look, I don’t practice on the defense side, but I imagine it’s pretty cutthroat competitive to have clients and you feel obligated to do what your client wants even when that is in violation of our ethical rules and our rules of

Erich Vieth:

Discovery. Yeah. Especially repeat player.

Tim Cronin:

It’s like

Erich Vieth:

Maybe

Tim Cronin:

30% of your business. There’s repeat players. And then there’s lawyers I work with that I have cases all the time that I don’t really have these problems with.

John Simon:

So a while back, I had a product liability case and it had to do with a product with an alarm on it and the alarm didn’t work. So I had done the same thing. I did the discovery and all I heard, and I knew the lawyer on the other side, he’s a good lawyer, excellent lawyer, good guy, honest, ethical. And all I heard was, “Hey, give me a demand, let’s settle. Give me a demand.” And when I hear that, I’m like, “I don’t know what my case is worth yet. Maybe let me do the discovery. Maybe I’ll find out it’s worth less than what I think it is. Let’s get the information and do our due diligence before we start talking about resolving the case.” And so I asked for some pretty specific things in that case. And what happened was the attorney in that case told me sort of off the record, we have some documents and I guess it was with their client, but they basically said … I ended up going over to his office and the documents were on a conference room table and he said, “Here, let me show you what they are and I’ve not been given authority yet to produce them.” And I’m assuming his client knew I was looking at them and they were what I thought.

They were very damaging documents for the defendant, but they just didn’t want them discovered. No, I don’t know what the situation was, but the system doesn’t function. It’s not some kind of inconvenience or hindrance. The system stops. If we don’t have confidence in our ability to conduct discovery when we’re asking a party for certain information and they answer, I’m thinking about the situations where if they’re willing to defy a court order, they might just say, “We don’t have it. ” I mean, who knows?

Tim Cronin:

Right. I mean, right. We make jokes about the lawyer with the shredder on their desk, but now everything’s electronic. And so you can get metadata showing when things were created. That’s another problem we’ve had where we get documents produced in cases and we get the metadata and we see that it is actually a litigation created document that they’re saying is something that was created back. The things people do, you can lose your law. It’s just crazy.

John Simon:

Right. I mean, I get nervous about answering an interrogatory.

Tim Cronin:

Yeah.

John Simon:

Disclose it. If there’s any doubt, disclose it. And I did defense stuff for four or five years in the beginning when I got out of school and the lawyers I worked for, I mean, if it was there, we produced it. If we got to object, but we would produce it. We would always produce it. And I would say, the lawyers that I worked with, if a client told us, “Here,” it’s one thing too, to object to it, which is legitimate. You want to object, that’s your job. Those are your

Tim Cronin:

Objections.

John Simon:

But again, to remind everybody, we’re talking about situations where the court has already heard the arguments and ordered the party to produce it. We don’t get the information and we’ll get some kind of sanction that has no real teeth to it.

Tim Cronin:

And so you’re skipping, but you’re going towards the end. There’s like five categories of discovery obstruction that we could talk about in a little bit before you get there. But you’re talking about when you’ve fought the slow roll, slow walk of discovery, the document dumps, the boilerplate objections, the coaching object, and you’ve actually gotten testimony already. It exists. They don’t have it. They’re not giving it to you. The court is

John Simon:

Ordered advice. So one of the things, like you say, what comes before that, I jumped kind of to the end, but what I see all the time, a lot of times in cases that we get involved in in the middle or more towards the end, and the attorney will come in and say, “We’re getting along great.” We’re getting along great with the other side because they haven’t been given them anything. They keep saying, “Well, we’ll get it to

Tim Cronin:

You. ” Late discovery responses, endless extension requests, rolling production that never ends. We’re still searching, produce document dumps the night before depos or deadlines, and we get involved and we’re like, “We don’t have all of the things that we need.”

John Simon:

Yeah. And another thing that I see too is somebody will say, “Oh, well, they want to settle the case. Let’s not get involved in all this messy to time consuming discovery. Let’s just settle the case.” And then they coax you into a month before trial when it’s too late to do any meaningful discovery, that’s why as a very young lawyer, what I started doing, I started filing my … As soon as I filed a set of written discovery in a case, as a young lawyer, I used to do this. Immediately with the discovery, I’d send a notice on a motion to compel. It was with the discovery. And they’d say, “What in the hell is this? ” And I’d say, as of yet, I’ve never received information without some type of objection. And I said, “Relax, if you’re not objecting, it’s of no consequence.”

Erich Vieth:

For about a dozen years, I’ve been teaching civil trial practice at St. Louis U School of Law and this happens every year and I’ll say, “Okay, we’re going to do interrogatories and requests for production and pull out the rule.” Okay. So what happens is you send out your discovery, your written discovery, and you wait 30 days and then your answers come and then envelope or electronically. Is that your understanding of what happens? And what world is that? And everybody goes, “Okay, sure.” And I go, “No, not quite.” And so then we walk through all of the gymnastics that you got to do and it goes on because you can’t describe this problem in two minutes or five or 10 minutes. I talk for 45 minutes about how to drill it out as best you can. And this is not like the honor system at all.

This is not like the good old days, but you’ve got to paper these things to death. It’s like everything you’re doing, as we said today on the phone, blah, blah, blah. And then your file consists of like hundreds of pieces of paper where you’re trying to get someone- You can’t stay on. It’s like you’re pulling a

John Simon:

Horse that make a good record. And again, this is not something … We take motions for sanctions very seriously. I don’t like filing them. They are a last resort, but when you’re left with no alternative, when the court has already ordered the party to produce something and they still haven’t produced it, if they don’t have it, great. Put it in an interrogatory or written response, say we don’t have it.

Tim Cronin:

Yeah, they don’t want to do

John Simon:

That

Tim Cronin:

Though.

John Simon:

So the other thing that is a whole nother issue is the document dump because everything’s electronic now, right? And we have, I would say 20 years ago, 25 years ago, if you had a big case, you could fit all the documents in a box, in a product liability case or whatever, the testing, whatever was related to it. Now, Tim, how many cases do you have where there’s over a million documents? Just you. Four or five? You have five? I guarantee you, I have five, six, eight with over a million documents. One has 1.7 million. They

Tim Cronin:

Have to run search terms and bullion search things. And the scope of what we’re dealing with and what’s available and how hard it is for them to get, which is not hard, is the game has changed in the last 25 years completely.

Erich Vieth:

We reached the end of part one of our discussion dealing with discovery obstruction. This has been another episode of The Jury Is Out. I’m Erich Vieth. I’m Tim

Tim Cronin:

Cronin.

John Simon:

I’m John Simon. We’ll see you next time.

Announcer:

The jury is Out is brought to you by the Simon Law Firm. At the Simon Law Firm PC, we believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 314-241-2929. And if you enjoyed the podcast, feel free to share your thoughts with John, Tim, and Erich at [email protected] and subscribe today because the best lawyers never stop learning.

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