EP 708: Navigating Discovery Obstruction in Modern Litigation Part 2

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’s Out. I’m Erich Vieth.

Tim Cronin:

I’m Tim Cronin.

John Simon:

I’m John Simon.

Tim Cronin:

We’re going to pick up on our discussion of holding feet to the fire, dealing with discovery obstruction.

John Simon:

So what do you do? What do you do

Tim Cronin:

About this? So I mean, look, the late discovery responses, endless extensions, rolling productions, just not getting stuff. First of all, get your discovery requests out early. Front load it. And then every time you think or figure out something you haven’t gotten or didn’t ask for, send a new one out. You need to stay on top of it. You have to regularly send emails and let … You have a case, John, where you said you’re sending an email every single morning.

John Simon:

We’re asking for witnesses to be deposed.

Tim Cronin:

So regular emails, letters, notes and depos.

John Simon:

I would just say in that case, we’re two months from trial in that case. And we have three or four depos we need to take. And it’s not, okay, we’re finding them, we’re calling them. There’s no response.

Tim Cronin:

So you have to lock in hard production deadlines and scheduling orders early. Demand custodians for records, use drop dead meet and confer letters, file targeted motions to compel. And Eric, as you said, you better come with receipts to the court. You need to document every deficiency, thorough meet and confer letters, be specific and professional in your emails so you can attach them as exhibits. Bring them to court, motions to compel, promptly show … Courts respond, I think, to patterns, not isolated incidents. So you need to show a pattern of you bending over backwards to try to work it out. And establishing in a depo this stuff exists and repeated attempts to confer before the court … Because they don’t like to hear discovery disputes. They don’t like it.

Erich Vieth:

John, you said no response sometimes. I’m finding that where you want to take a deposition and you’re trying to do the right thing. Can you give me some dates you’d be available you and the witness in the next two weeks? Nothing. Nothing. So what do you do with no response?

John Simon:

Write again. And you don’t want to be a jerk about it. You want to be professional and get along, but you can’t jeopardize your case. Your

Tim Cronin:

Client’s case.

John Simon:

Right. You can’t jeopardize your client’s case.

Tim Cronin:

This is kind of off topic. I want to come back to the document dump thing. But about five years ago there … I don’t know if you guys saw this. I thought it was spreading like wildfire through our profession. There was a YouTube … You know what the Defense Research Institute is?

John Simon:

Sure. Yeah.

Tim Cronin:

Okay. It’s a conglomeration of defense lawyers that it’s a national organization. There was a YouTube video that circulated of somebody recording on a phone, a defense attorney who was giving a talk, very seriously telling everybody in the room, object to everything and don’t produce any documents in the case. Nine out of 10 plaintiff’s lawyers are too lazy to ever follow up. Just object. Don’t produce anything. Even if you know it’s relevant. If they don’t ever follow up, they’ll never get it. And I saw that video and it enraged me. That person should not have a law license. Somebody should have went up and said, no, no, I’m sorry. Don’t do that. Assert valid objections, but this is not a game.

John Simon:

I think if you’re on it and diligent and focused and stay on them and file the motion, file the motion to compel, follow up with a motion for … If you do all of that, I think in the majority of cases where we have these issues, it comes out very, very poorly for the other side and great for our client.

Tim Cronin:

Make sure you request documents in native searchable. You get a mid searchable format. Make sure you get Bates.

Erich Vieth:

Hope you

Tim Cronin:

Got

Erich Vieth:

A Judge that’s going to be quickly- Well, that’s the key. We got some judgment.

Tim Cronin:

It’s

Erich Vieth:

Super

Tim Cronin:

Important.

Erich Vieth:

You asked for a hearing and they go, our next hearing is a month and a half from now. Well,

Tim Cronin:

I

John Simon:

Have

Erich Vieth:

Depos. If you’re not going to be

John Simon:

There for me, I can’t-That’s why I would notice up the depo, the motion to compel before they answered the discovery. Well, that’s funny. Not the motion. Yeah, just notice it up and see what happens.

Tim Cronin:

Delay is the cheapest defense tactic in civil litigation. The antidote is forcing the timeline to become the issue. We have to push it forward.

Erich Vieth:

Tim, as you’re listening to these, two things can be true at the same time. These are unethical tactics to do this, but they work. They do work. A lot of attorneys will give up. Don’t cost any money. Or they get less information than they should have. So that’s what’s going on, two things at the same time.

Tim Cronin:

The boilerplate objection factory, we all deal with that. Overbroad, unduly burdensome, vague, ambiguous, answers subject to. The St. Louis City Court has a rule that you’re not. There’s orders. It’s not actually local rule, but you’re not allowed to answer subject to discovery. Too often, I see lawyers that don’t ever raise that. Like you get a bunch of objections to a really important document request and they say subject to but without waiving and then you get some documents. You have to follow up on, I need to know if you’re withholding any documents pursuant to these objections. If you won’t answer, no documents are being withheld. You have to go up to the court and say, “Judge, I need these objections stricken or them to give me a law.”

Erich Vieth:

Could you go over that again? So let’s say you’re a defense attorney. You’ve got some things that you think really are objectible, some things you do want to produce, and it’s all within the same question. So what’s the proper way to respond to that?

Tim Cronin:

So I know there’s orders in the city of St. Louis and elsewhere that says you cannot object and then answer subject to discovery. I think that’s kind of problematic because there might be parts that are objectionable. I think the appropriate thing to do is assert your objection and say, “I interpret this request as encompassing this broad of a category.” I object to this subset as not relevant or for whatever reason, but I do not object to … You basically lay out, I am producing documents within this scope. Anything being withheld is pursuant to this object. So at least you know what the dispute is so you can bring it to the court.

Erich Vieth:

Yeah. What I’m worried about is that they’re just granting themselves extra time to answer by giving a BS objection. So if you did say, “I have or don’t have documents that I’m withholding

Tim Cronin:

At this point.” Right. It should say, “But there are no documents being withheld or give a log.”

John Simon:

The other thing too that you bring up a good point, Erich, is you file the discovery and then of course they’re going to get … And it’s right, I mean, no problem, 30 days, extra 30 days or whatever to initial response. And my response to that usually is, okay, but that doesn’t … Not to object to actually answer the discovery, but what usually happens is they’ll ask for 30 days and then there’ll all be objections, every one of them. And then you do the meet and confer. And then by the time, as you said, a month, it takes six weeks or two months to get a trial hearing, and then you’re up at the hearing and you get the motion to compel and some of the stuff’s ordered to be produced or not. And then they get a certain number of days to produce it and then it’s not produced.

And then you wait another six weeks to go back up to court. Your months into the case, six months into the case after you filed it and you still don’t have answers to written discovery.

Erich Vieth:

Students don’t appreciate the clock or the calendar, I should say. They just don’t get it that, “Oh, you got two years to get this case ready for trial.” And they think, “Oh, I got two years.” It’s like, I’m thinking two years. We got to get going tomorrow. We got to do this and

Tim Cronin:

Answer for 60 days, then I’m serving discovery. They’re not answering it for 90 days. And so doing motions to compel, we’re not doing depos for a year. Yeah. It’s like the first year of

John Simon:

The case.

Tim Cronin:

Nothing happens. But

Erich Vieth:

Go ahead, Erik. So when they ask that nice, polite request, can we have 30 extra days to answer that discovery? I often say yes for the answer, no for the objections. That’s what I do. I want the objections immediately. And then we’re going to work those out right now.

John Simon:

Here’s the thing too. What I’m saying, what I think you’re saying is be reasonable, be professional, be ethical, be honest. But that doesn’t mean that the other side doesn’t comply with a court order, right? And you don’t want to run to the courthouse every time there’s a dispute. Then you look paid. Right. And it has to be something too, it has to be something that’s relevant to some significant issue in the case, but state professional. You don’t win these battles by being the loudest lawyer. You win by being the most disciplined, prepared and persistent is how I would put it.

Erich Vieth:

And a lot of this can be, I won’t say a lot of it, some of it can be avoided with really well-worded discovery, simple questions, interrogatories that can be understood. Be very specific. 15 words, not 50 words. You’re

John Simon:

Giving them an advantage by having these compound run-on sentences. So

Erich Vieth:

If you go to the court and if you write for a 12-year-old person to read it, and even a kid can look at it and go, “Oh, you want these kinds of things,” that puts pressure, I think, on the other side to answer it because they know ultimately the judge is going to look at it, the judge is going to hate it. I’ll tell you, you’ve probably seen this kind of stuff. I went to a rural county, I had six interrogatories. We tried to work them out. We got it down from like 12 to six and they called the case. What is this? Judge, this is a motion to compel and the judge said- How can’t you work it out? I don’t want to do this. I just don’t do this. It’s infuriating. And so I said, “Judge, we’ve actually worked it out from 12 to six, and actually four of those are about the same issue and said, can you go out in a hallway and work it out some more?” And I said, “Judge, we’ve worked it out several times already.

I think this would take like three minutes.” I’m begging to get the court to do something. And then you know what happens when the judge actually sits down and looks at those discovery requests,

Okay, yes for that, no for that, yes, yes. Okay, we’re done. But it all starts with clearly worded discovery.

Tim Cronin:

You have to be very specific in what you need and it has to make perfect sense why it’s logically relevant to the case. You have to escalate gradually, as you’ve said, John. At the end of the day, discovery misconduct only stops when the cost of doing it exceeds the benefit, right? Yep,

John Simon:

That’s it.

Tim Cronin:

It’s going to keep happening until the cost exceeds the benefit, which requires unfortunately, it’s not unfortunate. We have to do our jobs and be diligent and keep bringing it to the court and escalate gradually. But it is really unfortunate in our profession that we keep ending up in these situations where we’re at sanctions asking for pleading striking and telling the court not doing this is encouraging it to happen and this only stops if courts start striking plea. My client can’t get a fair shake on the merits if they don’t get the information and that’s what they want.

John Simon:

And you would think that I’ve always thought, as soon as somebody’s defying a court order, what that tells me is whatever they’re holding back’s really, really bad, really bad for them and really good for us because they’re taking the position we would be better off facing sanctions from a court denying a court order than producing relevant information in the case. Those are the documents I want to see. I really want to see those. I’d like

Erich Vieth:

To add a footnote. John, at one of your annual CLE sessions, there was an attorney named Fern Wolf and talked about the intersection between ethics and discovery obstruction. And I thought, “Oh, this is incredible.” So Tim and I had her on the podcast and she had a handout that she went through about six or eight ethics rules and talked about how they impact discovery practice, the kind of things we’re talking about right now. I’m not quite sure what to do with it because I don’t know that you’re supposed to be accusing each other of ethics violations during a discovery, a dispute, but I think she’s dead on. I think there’s a lot of this stuff that does impact how you should be

Tim Cronin:

Practicing. I think you’re not allowed to directly accuse an attorney, but you can certainly factually lay out the groundwork that would lead to a conclusion that it’s an ethical violation and your job is to do that.

John Simon:

And it’s not the vast majority of defense attorneys that I deal with. I don’t have this problem. And again, we’re not filing motions for sanctions in every case, but even if it’s two or three times a year, that’s too many. And I’ve gone years.

Tim Cronin:

I do think that the insurance thing is happening in almost every case now.

John Simon:

Going back 10 or 20 years ago, I didn’t file motions for sanctions. For decades,

Tim Cronin:

I didn’t file them. I’ve been with you for 16 years and it was like we were generally not supposed to do it. I mean, if it called forward and our client needed it, but we didn’t get to that. We eventually were able to get the information through the means we needed to work it out or just a motion to compel. And then once we had an order, we’d get it.

John Simon:

We didn’t have to file the motions because we filed a motion to compel. The judge denied some of the stuff we wanted and ordered the rest to be produced. And guess what? We got it. It was produced. The other side followed the … Again, I’m not talking about the beginning of the discovery process. I’m talking about situations where … Well, what do you do? The court orders them to produce it. They don’t and the sanction that the court enters, if any, like you said, Tim, there’s no real teeth to it.

Tim Cronin:

Yeah.

John Simon:

So there’s nothing you can do. I

Tim Cronin:

Think backing up a little bit, you need to think very carefully and put a lot of thought into … Because often the court, when you’re asking for a motion to compel order, will ask you for a proposed order or what you want. Make sure you think very carefully and be very specific in what that order says. Because later they’re going to be looking at the order and go, “Judge, it doesn’t say exactly.” So put a lot of thought into that order and make sure … I’ve walked out with motion to compel orders granted that didn’t have a deadline in it. Early in my career-That’s worthless.

Erich Vieth:

Mistaken.

Tim Cronin:

And then I was like, “Oh, well, it was in my motion and then I forgot to talk about it orally.” So you have to make sure it is very specific in what they’re supposed to do and when they’re supposed to do it.

Erich Vieth:

You want to put something in the bottom of the order. I know this is like a joke, but where the court says, “And I really mean it. ” Whatever it is they’re saying, I don’t know how to do that, but it’s not just produce this in 20 days, but I’m tempted to want to add something else. If they don’t produce it in 20 days, then the court will … Have you ever done that?

Tim Cronin:

Well, then the court will entertain sanctions and that gets stricken. I’m not pre-judging. If they don’t, they’re going to produce it, right, counsel? Of course. Okay, Judge. Well, I’ll be back up

John Simon:

Here. Well, you can’t anticipate the other side not complying with a court order.

Erich Vieth:

Well, in some cases, you can’t.

John Simon:

Obviously, got to wait for that to happen.

Tim Cronin:

And as you’ve pointed out, John, you meticulously document your meet and confer attempts, establish in depos what documents exist, where they’re stored, how long they keep them, all that stuff because discovery abuse, it thrives in the gray areas of litigation. So the lawyer who can bring clarity, persistence, and a clean record should win the bat. That’s how you overcome it. Diligence, bring your receipts, don’t have it be a gray area where the judge doesn’t really understand why it’s relevant, what exactly you need. You need to drill down and do your work to figure out exactly

John Simon:

What- And pick your battles, like we’d said before. And by picking your battles, I mean, there might be, as you said, Erich, 10 or 15 items they’re objecting to, and maybe there’s one or two that are really, really significant. Those are the ones you need to spend your time arguing about, filing a motion to compel. If you’re defending all of them, you’re heading down the wrong path. I mean, you got to pick and choose your battles. You go to any judge, and it makes sense. You go to the court and say, “Well, Judge, even if they objected to 25 of the production requests, you’re not going to find too many judges that are going to be patient enough to go through all 25 of them with

Erich Vieth:

You. ” Like almost none of them. Well, you want the thing to look like a syllogism by the time you’re at your sanctions motion. It’s like dogs bark, this is a dog.

Tim Cronin:

Yeah.

Erich Vieth:

It barked. And so the judge goes, “Not much to think about here.” So when you said lives in the gray area, it just reminded me again that if you use words where you go, “I thought that meant this, Judge.”

John Simon:

So Erich, the one comment you made about phrasing, writing the discovery requests, and I’m not an advocate of limiting discovery requests, but we have a case in one of the federal courts and we’re limited and it’s a complex product liability case with multiple parties and we believe that we’re being told we’re limited to 15 questions. Okay. Total?

Tim Cronin:

Interrogatories,

John Simon:

Request

Tim Cronin:

For

John Simon:

Production. Request for production.

Tim Cronin:

I have a

John Simon:

Federal court

Tim Cronin:

Case where I’m

John Simon:

Limited

Tim Cronin:

To 15 RFPs and I don’t understand it

John Simon:

Fundamentally. But the flip side to that is we worked really, really hard to phrase those so that there was no extra language in them. We were very, very careful. I spent more time looking at those 15 or whatever it was requests than I do with 60.

Tim Cronin:

When’s the last time before then that you drafted initial discovery

John Simon:

Requests? Here’s the other thing too. The same case, it’s Johnny and I are working on it and the same court is limiting the depositions we can take of the parties. And so we’re going, okay, and I think it’s four a party or five, whatever it is, three or five. And we’re going, “Eh, we really don’t need the not sure we need to

Tim Cronin:

Be really

Erich Vieth:

Efficient.” John, your story reminds me, there’s a quote I’ve brought up periodically and it’s by a dozen people. It’s the same form. It goes something like this. “I wrote you a letter. If I would’ve had more time, I would’ve written you a shorter letter.

Announcer:

“And

Erich Vieth:

It’s like none of this stuff just magically comes out of your mouth or your pen like it should, but you get it down, you get it simple. And then I think it affects everything going forward. And it’s like you got to keep yourself in mind that this thing, these words I’m writing right now, in 12 months they will make it or break it in front of a judge.

John Simon:

There’s a federal judge who had a saying, I’ve been in front of him several times and I’ve heard him say this more than once, he would say,” Do your future self a favor. Do your future self a favor. Do it right. Do it right in the beginning. Folk, what’s the most important thing you’re working on? “My answer to that is whatever’s in front of me, whatever is in front of me, that’s the most important thing because as you know, we can’t dabble in what we do. It’s going to come back to bite you. Make sure your requests are of things that you actually need, right? Make sure that they’ve been phrased in a way that they’re not 45 words, they’re simple, they’re straightforward. All of these things will help you, but they don’t help if you’re dealing with a party that doesn’t abide by a court’s order.

I don’t know what … Tell me what the solution is to that. Do either one of you know what this … Because I’ve had that happen where they don’t abide by a court order and the sanction that the court is offering is a slap on the wrist.

Tim Cronin:

Well, either a slap on the wrist or actually harmful to our client, which is like, ” Oh, well, you’re saying that you don’t have the information you need and your client’s prejudice, so we will continue the case.

John Simon:

“So they can not give it to us a year from

Tim Cronin:

Now. Continuance that they

John Simon:

Desperately will. So they can continue not following the court’s orders 12 months from now.

Tim Cronin:

And so I think you have a point here written down, which is what simultaneously while building the record to actually try to get the documents and if they violate the court orders, then sanctions are appropriate. If that doesn’t happen, then often you can turn the theme of your … Johnny tried a case with Katie recently where basically the case was about their destructive behavior and discovery abuse. And there was a adverse inference instruction, which helps in what you can say, but even without it, they can sometimes be providing you the very heat that you need in the case. In a case that you think you’re right on the law, the damages are bad, but there isn’t like the heat there that you want to motivate a jury. The coverup, it can be the heat that you need where you can say things like, ” Establish with the corporate rep or the defendant like this exists, they didn’t get … “And in close, you could say,” Think about how bad it must be for them to choose you not to see it.

John Simon:

“Tim, we’ve had cases together where we’ve asked for testing, for instance, in a product case and they haven’t produced it. They won’t produce it. They’re objected to it. Maybe the court ordered them and we don’t have all of it or just pieces of it. And so what happens, and this happens a lot, we start in the depositions with questions of the engineer, the witnesses, and we’ll start talking about testing is important and every company’s test and your competitors test and you think … And then all of a sudden- You do benchmark. Wait a minute. The lawyer starts taking notes on the other side like, damn, we’re not producing any of the testing. This looks really bad. And I think it’s because they’re not really giving any thought to whether they actually are objecting to something or not. They’re just objecting blanket to everything. It can sometimes be frustrating.

But again, the point I’m making is that the vast majority of cases, we don’t deal with issues like this where they’re denying not following a court.

Tim Cronin:

We’ll deal with slow rolling and document dumps and general objections, but we’re eventually able to work our way if we do our job to get court orders and then we get the stuff. It’s the rare instances you’re talking about where you do all of that and then court orders are being violated once, twice, three times. And it just enrages you because it’s like- I thought we all took an oath to be able to do this job.

John Simon:

Well, like I said, that’s out of our hands. Our only recourse is the court and whatever the court does, that’s what we live with.

Erich Vieth:

And when you get the good order, I think sometimes … I’ve seen this in the last few years where you’re representing a big organization and someone says,” We don’t have that. “That information, we can’t find that. And then the heat comes on from the plaintiff’s side and then you then tell your organization,” We’re getting heat. “And then I’ve seen it where they get everybody in the room. And it took a while. It took a lot of pushing to get eight people in the room on a Zoom call, and then someone raises their hand, says,” Oh, I know where that is. “But the rest of them might not know, but that order, if you have court orders or threats of court orders, it might take that to get, maybe it’s not the attorney, maybe the attorney’s not pushing the client hard enough for various political reasons.

You might think, ” Oh, I don’t want to bother the people who are named. “Well, they

Tim Cronin:

Can lose their client.

Erich Vieth:

I

Tim Cronin:

Understand

Erich Vieth:

That dynamic. And then the first person is giving you a good faith but uninformed answer. I think that thing doesn’t exist, but you’re from the outside in, so you don’t know what’s going on over there. You just don’t know. As a plaintiff attorney trying to … You ought to have it. It should be there. If it’s not there, why is it not there? And you don’t have the ability to do that. And the defense attorney is being stonewalled in other ways by their own client. So I mean, it’s the same solution every time. Get some good court orders, some threats going, and then maybe it escalates over there where they can say,” No, we really got to give an answer yes or no here.

Tim Cronin:

“By the way, John and I do exclusively plaintiff work. Erich, you do work on both sides. I’m not trying to suggest that this is a one-sided problem. I just only have cases with defense attorneys, but the same holding the feet to the fire should apply to the plaintiff. We all know there’s cases out there probably where plaintiffs have preexisting injuries and they don’t disclose that provider and they don’t get their … And the same rules should apply to them. If they do that and there’s court orders and they don’t … I mean, first of all, you shouldn’t do that. You should disclose that and give authorizations for the records that it works both ways.

John Simon:

Yeah, absolutely. To sort of sum this up, and again, we’re talking about really avoiding our hand … Dealing with discovery obstruction is really what we’re talking about. Here are 10 tips for how to deal with … Anticipate and deal with obstructive discovery. Number one, start reasonable. Not passive, but open with clear. As Erich said, fair questions. Don’t let reasonable turn into permissive. Two, put everything in writing, confirm deficiencies, follow up every call with an email to build a record. Three, be specific. Name the missing pieces. Identify exactly what hasn’t been produced. Four set deadlines. Don’t wait for theirs. Control the tempo with clear timelines. Five, escalate gradually, but intentionally meet and confer, send deficiency letters, then move to compel. Use the court when it matters. Act when necessary, don’t just threaten. Seven, ask for specific relief, request clear production orders, deadlines, or sanctions. Eight, lock them into positions, get written denials that can be used later.

Nine, state professional. Always. Assume every word that will be read by the judge. 10, turn obstruction into a case. Last resort, there’s a court order, you don’t get it. Use their conduct to show that they fought the truth in the case.

Erich Vieth:

We’ve been discussing dealing with discovery obstruction. This has been another episode of The Jury is Out. I’m Eric Vieth. I’m Tim Cronin.

John Simon:

This is 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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