Defending and Responding in General

• Author: Ashley S. Lipson
• Pages: 697-726

12-695

Sometimes it pays to give the enemy

just what he asks for.

Chapter 12

Defending and Responding

in General

§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 12-696

0.1 Ashmore v. Mississippi Authority on Educational Television, 148 So.3d 977 (Mississippi, 2014). In an auto negligence personal injury lawsuit,

misrepresentations by the injured motorists during the course of deposition testimony and in answers to interrogatories constituted willful

misrepresentations and deliberate attempts to subvert the judicial process that warranted dismissal of the action with prejudice; the motorists

repeatedly provided false answers to interrogatories and deposition questions regarding one of the motorists’ injuries that had been sustained

prior to the accident, despite medical records to the contrary.

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 confronting.

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

It is important to note, prior to the discussions that

follow, that at no time is it ever acceptable for a party

to lie, make false statements or otherwise provide dis-

covery responses that are dishonest.0.1 Nor is it ethical

for attorneys to encourage or suborn such misconduct. In

addition to potential sanctions for being dishonest, uneth-

ical or perhaps criminal, providing false information is

simply bad strategy.0.1

Every discovery weapon (i.e. Request for Admis-

sions, Notice for Production, etc.) that you will ever face

is covered in detail within its own particular chapter;

and each has its own special set of shields. Therefore,

if you have a problem that expressly 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 weapon-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 administrative.

And in keeping with the comprehensive theme of this

book, we will frequently update your war effort by mak-

ing certain that all available procedures and techniques

are included. Having said that, however, just because we

include a particular procedure or “defense” in our arse-

nal 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 position

(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 altogether, 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-plain-

tiff 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 conclusions.

. . . Second, only a complaint that states a plau-

sible claim for relief survives a motion to dis-

miss. Determining whether a complaint states

a plausible claim for relief will, as the Court of

Appeals observed, be a context-specific task