Defending and Responding in General

• Author: Ashley S. Lipson
• Pages: 845-880

Sometimes it pays to give the enemy

just what he asks for.

Chapter 12

Defending and Responding in

General

Table of Contents

§12.10 Strategy and Philosophy

§12.11 Complete Avoidance

§12.12 Defensive Strategies

§12.20 Strategic Compliance

§12.30 Strategic Non-Compliance

§12.40 Paths of Non-Compliance

§12.41 Circumvention

§12.41(a) The Burial Technique

§12.41(b) The Conference Demand

§12.41(c) Turnaround Refusal of Requesting Party to Comply

§12.42 Objection

§12.43 Motion for Protective Order

§12.44 Defending a Desperate Last Stand

§12.45 Asserting Excusable Neglect

§12.50 The Forms That You Need

Form 12.1 Comprehensive Defensive Checklist

Form 12.2 Motion for a Non-Disclosure Protective Order

Form 12.3 Motion to Dismiss for Failure to State a Claim

§12.10 Guerrilla Discovery 12-2

1 To oppose, object to, or respond to: Requests for Admissions (see §5.50), Interrogatories (see §6.50), Notices for Production

(see §7.50), Demands for Inspection (see §8.50), Demands for Physical or Mental Examinations (see §9.50), Depositions or

Notices of Deposition (see §10.50).

2 “No one thinking soundly, logically, would construct a strategic framework with offense only. Not the New York Giants. Not

America “- Colin Powell

3 If you want to be certain that you are hitting every single possible defensive maneuver relating to your problem, refer to §12.30

(infra). It provides a step-by-step generic list. The last step will then lead you to whatever “specific” weapon you may be confront-

ing.

4 550 U.S. 544 (2007).

5 556 U.S. 662, 129 S.Ct. 1937 (2009).

6 See Form 12.3.

§12.10 Strategy and Philosophy

Every discovery weapon (i.e. Request for

Admissions, Notice for Production, etc.) that you

will ever face is covered in detail within its own par-

ticular chapter; and each has its own special set of

shields. Therefore, if you have a problem that express-

ly involves one of those weapons, you might find it

helpful to refer to the appropriate “shield” section of

that particular chapter for additional information,1 but

only after reviewing this chapter. Whereas each weap-

on-specific chapter presents tactics and shields directed

toward a single discovery device, this chapter deals

with the crucial subject of “overall” defensive strategy.2

This is an important chapter, to be sure; the devic-

es covered pertain to all discovery campaigns and could

well be used to counter virtually any discovery attack.3

But before confronting your “discoverer” or running to

grab one of many shields, you should first make certain

that you have the right frame of mind with respect to

your obligations to comply with discovery requests in

general. To be frank, most attorneys do not.

The defensive shields contained within the

arsenal cover all proceedings, state, federal or admin-

istrative. And in keeping with the comprehensive

theme of this book, we will frequently update your

war effort by making certain that all available proce-

dures and techniques are included. Having said that,

however, just because we include a particular proce-

dure or “defense” in our arsenal does not mean that

you should use it in every battle. Moreover, you are

not required to deploy every shield mentioned in the

following chapters in order to win your war. On the

contrary, the very highest level of combat skill often

involves what I call “strategic compliance.”

§12.11 Complete Avoidance

For those who are in a purely defensive posi-

tion (defending a lawsuit without any counterclaims

or cross-claims), discovery often turns out to be an

expensive and losing proposition; essentially, such a

defendant will have nothing to gain from protracted

proceedings of any sort. If the plaintiff happens to

have a complaint that relies entirely on discovery to

demonstrate that his or her claims are plausible, then

as a defendant, you may be able avoid discovery alto-

gether, especially if the case is in federal court. This

is due to a set of landmark cases: Bell Atlantic Corp.

v. Twombly4 and Ashcroft v. Iqbal.5

The significance of the two trend setters lies

in the increased power of the Rule 12(b)(6) motion

to dismiss for failure to state a claim.6 Unlike Rule

56 of the Federal Rules of Civil Procedure (and its

state counterparts), a motion under Rule 12(b)(6) is

normally considered prior to the commencement of

discovery as opposed to after the close of discovery

proceedings. This significantly brings an end to the

use of the “fishing expedition” to establish a prima

facie case. Twombly led the anti-plaintiff assault in

an anti-trust case, but Iqbal followed in its wake by

making it clear that the new tough standard was going

to apply to all federal actions, stating:

Two working principles underlie our decision

in Twombly. First, the tenet that a court must

accept as true all of the allegations contained

in a complaint is inapplicable to legal conclu-

sions. . . . Second, only a complaint that states

a plausible claim for relief survives a motion

to dismiss. Determining whether a complaint

states a plausible claim for relief will, as the

12-3 DeFenDinG anD responDinG in General §12.12

7 Brown v. Ameriprise Financial Services, Inc., 276 F.R.D. 599 (D. Minn., 2011). Plaintiff must adequately plead a claim before

obtaining discovery, not the other way around; discovery is not to be used to find a cause of action.

8 McGovern Physical Therapy Associates, LLC v. Metropolitan Property & Cas. Ins. Co., 802 F.Supp.2d 306 (D. Mass., 2011).

The discovery process is not available where, at the complaint stage, a plaintiff has nothing more than unlikely speculations;

while this may mean that a civil plaintiff must do more detective work in advance, the reason is to protect society from the

costs of highly unpromising litigation. More particularly, to survive a motion to dismiss, a complaint must allege “a plausible

entitlement to relief.” Twombly, 550 U.S. at 559, 127 S.Ct. 1955. While a complaint attacked by a Rule 12(b)(6) motion to dis-

miss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions. A formulaic recitation of the elements of a cause of action will not do.

9 Stevens v. Czerniak, 84 P.3d 140, 336 Or. 392 (2004). In general, in any civil action, a party has no obligation to disclose informa-

tion to another party in advance of trial unless the Rules of Civil Procedure or some other source of law requires such disclosure.

Apotex Corp. v. Merck & Co., Inc., 229 F.R.D. 142 (N.D., Ill., 2005). Parties to civil litigation are required to produce informa-

tion, helpful or harmful, that is requested in discovery or whose disclosure is required by statute or rule; absent such a request

or requirement, a civil litigant has no independent obligation to volunteer information to its opponent.

10 U.S. Supreme Court: Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). Alabama: Ex parte Lang, 738

So.2d 1288 (Ala. App. 1999); Ex parte Steiner, 730 So.2d 599 (Ala. 1998). Arizona: Link v. Pima County, 972 P.2d 669 (Ariz.

App. 1998). California: R.S. Creative, Inc. v. Creative Cotton, Ltd., 89 Cal.Rptr. 2d 353, 75 Cal.App.4th 486 (Cal. App. 1999).

Connecticut: Southbridge Associates, L.L.C. v. Garofalo, 728 A.2d 1114, 53 Conn.App.11 (1999). Georgia: Reeder v. GMAC,

510 S.E.2d 337, 235 Ga.App. 617 (1998); Gibbs v. Abiose, 508 S.E.2d 690, 235 Ga.App. 214 (1998). Illinois: The Habitat Co.

v. McClure, 703 N.E.2d 578, 301 Ill.App.3d 425 (Ill. App. 1998); Dufour v. Mobil Oil Corp., 703 N.E.2d 448, 301 Ill.App.3d 156

(Ill. App. 1998). Indiana: Vernon v. Kroger Co., 712 N.E.2d 976 (Ind. 1999); Witham Memorial Hospital v. Honan, 706 N.E.2d

1087 (Ind.App. 1999); Andreatta v. Hunley, 714 N.E.2d 1154 (Ind.App. 1999). Louisiana: Johnson v. Louisiana DOL, Office of

Workers’ Compensation, 737 So.2d 898 (La.App 1999); Bergeron v. Pan Am Assurance Co., 731 So.2d 1037 (La.App. 1999).

Minnesota: Minnesota Twins Partnership v. State by Hatch, 592 N.W.2d 847 (1999); State v. Davis, 592 N.W.2d 457 (1999).

Mississippi: Burnham v. Stevens, 734 So.2d 256 (Miss.App. 1999); Mississippi Valley Gas Co. v. Estate of Walker, 725 So.2d

139 (Miss. 1998). Montana: Anderson v. Werner Enterprises, Inc., 972 P.2d 806 (1998). Nebraska: Gallner v. Gallner, 595

N.W.2d 904, 257 Neb. 158 (1999). New Jersey: Medford v. Duggan, 732 A.2d 533, 323 N.J.Super 127 (N.J. Super 1999).

New York: DeSilva v. Rosenberg, 690 N.Y.S.2d 616 (N.Y.A.D. 2 Dep’t 1999); Gadley v. U.S. Sugar Co., 688 N.Y.S.2d 350

(N.Y.A.D. 4 Dep’t 1999). North Carolina: Alston v. Duke University, 514 S.E.2d 298 (1999). Ohio: State ex rel. Abner v.

Elliott, 706 N.E.2d 765, 85 Ohio St.3d 11 (1999); Blank v. Parker, 704 N.E.2d 678, 94 Ohio Misc.2d 168 (Ohio 1998); Breech

v. Turner, 712 N.E.2d 776, 127 Ohio.App.3d 243 (Ohio App. 1998). Texas: In re Alford Chevrolet-Geo, 997 S.W.2d 173 (Tex.

1999); Succession of Manheim, 734 So. 2d 119 (La.App. 1999).

Court of Appeals observed, be a context-specif-

ic task that requires the reviewing court to draw

on its judicial experience and common sense. In

keeping with these principles a court consider-

ing a motion to dismiss can choose to begin by

identifying pleadings that, because they are no

more than conclusions, are not entitled to the

assumption of truth. While legal conclusions

can provide the framework of a complaint, they

must be supported by factual allegations. When

there are well-pleaded factual allegations, a

court should assume their veracity and then

determine whether they plausibly give rise to an

entitlement to relief. Our decision in Twombly

illustrates the two-pronged approach.

Plaintiff may now find himself in a catch-22

position, particularly when all of the incriminating

evidence is in the hands of the defendant. In particu-

lar, the plaintiff may not be able to show that his claim

is plausible until after discovery is permitted to follow

its normal course, but under Twombly, discovery will

not happen unless plausibility is demonstrated up

front.7 Therefore, the key buzzword for use by defen-

dants is “plausibility.”8

§12.12 Defensive Strategies

If you cannot avoid discovery altogether, the

following alternatives and those considered through-

out the remainder of this treatise should be carefully

considered. No doubt, Form 12.1 will play a role,

regardless of your strategy.

Don’t hesitate to maintain your adversarial

stance.9 And even though you have no intention of

making the enemy’s job easier, you should always keep

the following list in mind. It is based on the notion that

to win your discovery wars, you need the court on your

side; after all, juries never decide motions. And as a

practical matter, thinking “Appeal” may be a waste of

time. A court’s discovery orders are not likely to be set

aside, absent exceptional circumstances, for in every

jurisdiction, judges possess “broad” discretion and

control over discovery proceedings and their decisions

will not be reversed absent an abuse of that discretion.10

Therefore, consider this list, regardless of whether