The Consequences of Playing Games in Discovery

In Charleston and elsewhere, if you’re a lawyer who handles personal injury claims, family court cases, or other types of litigation, then you deal with discovery in these lawsuits. In a civil lawsuit between two businesses that I’ve been handling for the past few years, the opposing parties failed miserably to cooperate in discovery. Their shenanigans resulted in them cooling their heels in jail for a day, sanctions of $150,000.00, an award of my client’s attorneys fees and costs of approximately $50,000, the striking of their answer (defense) to my client’s lawsuit, and an entry of judgment against them that could result in an award of over $200,000. How could things turn out so horribly for these persons to the tune of a brief stay in jail and the cost of approximately $400,000.00? I’ll explain by (1) covering the basics of discovery; (2) sharing details of why these parties were punished so harshly by the court; and (3) making suggestions to avoid the consequences of failing to cooperate in discovery.

Brief Overview of Discovery in Civil and Family Court Cases

In South Carolina and throughout the United States, our courts like to see controversies resolved on their “merits.”  The courts want the parties to have their day in court and be able to present their facts, their evidence, and their witnesses in a fair and even manner. To ensure the cases are resolved on their merits, our judicial system allows both parties to engage in what is called discovery. if you’re involved in a civil lawsuit or a family court case, both parties are entitled to conduct discovery.

Discovery is a formal process of sharing and exchanging information between the parties before any trial takes place. In discovery, the parties (or their lawyers) are trying to get answers to questions about each parties’ version of events, what their witnesses may say, what documents or other evidence they have to prove their case, and the list goes on. Also, through discovery, the parties are trying to gather evidence and proof of their claims or defenses.

These rules regarding discovery are so complicated that law students spend a good portion of their first year in law school learning about the subject. Here is a brief overview to familiarize you with the basics of discovery and some of the terms involved.

• Interrogatories – Interrogatories are written questions that are sent by one party to another. Generally speaking, the party who receives these questions has 30 days to answer them. Interrogatories must be answered “under oath.” In other words, your answers, even if prepared by your attorney, must include a notary public’s signature and seal. The rules for discovery list several “standard” interrogatories such as describing witnesses and documents. In addition to these standard interrogatories, you are limited to fifty (50) more questions unless you have a court order permitting more.
• Requests for Production – Like interrogatories, requests for production are made in writing, they must be answered within 30 days and they are only between the parties. Requests for production are the means by which you can ask the other party to make copies of documents, photographs, records, etc., and to request the inspection of property.
• Requests for Admission – Requests for admission are written questions by one party to another asking that party to either admit or deny specific facts or whether an attached document, such as a bank statement, cell phone records, or tax returns, are genuine. If the other party fails to respond on time, within 30 days, then the questions are deemed admitted.
• Depositions – A deposition is testimony that is given under oath. Under oath means that the person who is testifying is sworn, under penalty of perjury, to tell the truth. During the deposition, lawyers will ask questions of the witness, and the answers are recorded by an official court reporter. Later, the court reporter prepares a written transcript of everything that is said during the deposition. Depositions can also be video-recorded. There is little difference between testimony at a deposition and testimony in a courtroom except there is no judge there to rule on objections to the questions such as objections to hearsay testimony. During a deposition, lawyers do not make these objections until later when a lawyer tries to introduce the deposition transcript (or portions of it) at trial. Otherwise, it is not uncommon to hear a lawyer object, during a deposition, to the “form of the question.” However, despite this objection, the witness still has to answer the question.
• Motions to Compel – If a party doesn’t respond to interrogatories or requests for production, then the party seeking those answers must file a motion to compel with the court.  If the court grants the motion to compel, then the party who objected or failed to answer must then do so.
• Motion for Sanctions – If the court issues an order compelling discovery, and the party fails to comply with that order, then the court may sanction the party in numerous ways such as refusing to let in the party’s evidence at trial, dismissing their lawsuit, or striking their defense to a lawsuit, and imposing financial sanctions.

A Real-World Example of Discovery Abuse

In the case I mentioned above, I served interrogatories and requests for production nearly two years ago. In this business competition case, I asked for tax returns and other financial documents. The defendants did not answer our discovery requests within thirty days. When I finally did get responses, they were incomplete. Many questions weren’t answered at all or, if they were, the answers were vague and sketchy. Then, I filed a motion to compel, the parties entered into a consent court order requiring them to fully answer discovery within another 20 days. However, the defendants ignored that order too even though they consented to it. Meanwhile, between waiting for responses, being courteous and giving more time, waiting to have our motion to compel scheduled, and so on, over a year had passed since the original answers to our discovery requests were due.

Because the defendants ignored the consent court order compelling discovery, I then filed a motion for sanctions which the court granted by ordering the defendants to pay approximately $1,600.00 in legal fees (my client’s cost for pursuing the motion for sanctions) and requiring the defendants to fully answer discovery within 20 more days. Additionally, the court wrote that for each day the parties were late in fully answering discovery, they would be sanctioned $5,000 per day for up to 30 days. At this point, one would think that the court got the parties’ attention and that they would comply with discovery. But these parties weren’t through playing games yet.

Instead of fully complying with discovery, including basic requests for documents such as business licenses and tax returns, the defendants continued to ignore two court orders and gave evasive and incomplete responses. Then, I took the depositions of these two defendants. When I asked why they hadn’t produced documents such as tax returns, they gave several different responses including that they “lost” the documents (although they couldn’t say how) and that the other person had the documents (“don’t ask me, ask him”) even though they were in business together. I fully expected that the next excuse I heard was that their dog ate their tax returns on the way to the deposition. Instead, both of these defendants ultimately plead to the 5th amendment and refused to answer any more questions about where documents, such as their business licenses, might be. Because of their shenanigans, I filed a motion to have the court hold these defendants in contempt of court (a Rule to Show Cause) that was decided by the court nearly 2 years since these parties were supposed to answer discovery. After finding both of these parties in contempt of two prior court orders, the court sanctioned both parties by putting them in jail for a day, ordering them to pay approximately $200,000.00 in fines and legal fees, and striking their defense to my client’s claims for over $200,000 in damages.

What Can Be Done to Prevent Discovery Abuse?

So, what can be done to avoid sanctions for discovery abuse, other than the obvious which is to comply with discovery requests in a timely manner? Here are a few of my suggestions for both lawyers and their clients:

For Lawyers:

1. Don’t Lose Time – When I receive discovery requests, I immediately send them to my client so that no time in responding is lost.
2. Answer All That You Can – I instruct my clients to answer ALL of the requests they can (with some exceptions such as requests that would cost my client unreasonable effort and money in responding), even if we intend to object to them. That way, if the other side moves to compel and the court grants the motion, my client isn’t scrambling to get this information together.
3. Help to Locate Information – If the discovery requests include documents or other materials that my client doesn’t have, I include in my response that they don’t have them, the steps my client took to try to find them, and describe possible persons or locations were the documents may be. That way, either the other party ends up finding this information or, if there is a motion to compel, my client has shown good faith and cooperation in discovery.
4. Be Reasonable – I don’t object unreasonably to requests for information in discovery or get super nit-picky or hyper-technical in my responses. As lawyers, we all know that the court allows discovery to be broad. If I make discovery difficult for the sake of difficulty, I am only increasing my client’s attorney’s fees and risking their exposure to sanctions by the court.
5. Don’t Wait Until the Last Minute – If it appears to me that I will not be able to answer discovery on time, I don’t wait until the last minute to ask the other lawyer (or the court) for an extension of time to answer discovery. If there is a problem, I let the other lawyer know as soon as possible and ask for their cooperation in extending deadlines. More often than not, most of the lawyers I work with are considerate and will extend these deadlines.
6. Let Go of the Uncooperative Client – If I have a client who is clearly being uncooperative in discovery, I make it very clear that if they do not cooperate, they will need to hire another lawyer. I don’t do this to punish them. In the end, it is the court that will sanction them. Instead, if I help my client play games with the court or the other side, I too may be sanctioned by the court. In other words, I am not the type of lawyer that walks a fine line with my ethics and my reputation before the court. Afterward, if my client still plays games, then as a last resort I ask the court to relieve me as their lawyer.

For Clients:

1. Don’t Delay –  Depending on the complexity of the case, some discovery requests are simple, and some take a great deal of time to respond to. If it will take you extra time to respond, explain the situation to your lawyer as soon as possible so that your legal counsel can get an extension of time to respond to discovery.
2. Be Organized – Don’t dump unorganized answers and documents on your lawyer. First, you are wasting legal fees by having your lawyer organize your records. Second, a disorganized dump of information may lead to a disorganized or incomplete discovery response that may cause the other side to file a motion to compel.
3. Get Involved – Make time for you and your lawyer to go over your discovery responses to make sure they are complete and accurate. In other words, get involved in responding to discovery.
4. Remember, It’s Not a Game – Discovery (and a lawsuit) isn’t a game of “hide the ball.” Sooner or later, if you try to hide information from your lawyer or the court, it will catch up with you. As illustrated above, the consequences can be devastating. On top of all that, you are wasting your legal fees on your lawyer who, instead of focusing on your case, is spending time dealing with motions, dodging the court’s wraith, and getting tangled up in other hijinks.