Exposing Burdensome and Abusive Tactics

AuthorAshley S. Lipson
Exposing enemy misconduct
can be more potent than the dirtiest
of the enemy’s dirty tricks.
Chapter 16
Exposing Burdensome and
Abusive Tactics
Table of Contents
§16.10 Abuse in General
§16.11 Ulterior Motives
§16.11(a) Blackmail
§16.11(b) Subterfuge
§16.11(c) Hostage Trade Off
§16.12 Interior Motives
§16.12(a) Aggressive Discovery
§16.12(b) Excessive Discovery
§16.20 Running for Cover
§16.21 Your Guiding Rules
§16.21(a) Step 1—Check for Certification-Rule Compliance
§16.21(b) Step 2—Apply for a Protective Order
§16.21(c) Step 3—Check Weapon-Specific Rules
§16.21(d) Step 4—Check Local Rules and Standing Orders
§16.22 Prepare Your Motion
§16.30 Abuse by the Discoveree
§16.31 Abusive Parties
§16.32 Abusive Non-Parties
§16.33 Abusive Responses in General
§16.40 Discovery-Based Mistrial
§16.10 Guerrilla Discovery 16-2
1 See §5.60 (Enforcing Requests For Admissions), see §6.70 (Enforcing answers to Interrogatories), see §7.60 (Enforcing
Notices For Production), see §8.60 (Enforcing Requests For Inspection), see §9.60 (Enforcing Requests For Mental and
Physical Examinations), and see §10.60 (Enforcing compliance with respect to Depositions).
2 See generally, Chapter 17. See also Robert K. Jenner, “How to Attack Discovery Abuse,” Trial Magazine, February 2002, p. 28.
3 See §5.50 (Responding to the Requests), §6.60 (Responding to Interrogatories), §7.50 (Constructing Your Demands), §8.50
(Constructing Your Requests); §9.50 (Defenses and Countermeasures) and §10.60 (Defending the Deposition).
4 See, for example, see the Manual For Complex Litigation (Latest Edition) (recognizing the potential necessity for the appoint-
ment of a master where discovery abuses become “rampant”).
§16.10 Abuse in General
Keep in mind that there is a threshold distinction
with respect to the type of “abuse” that we are now
targeting. Abuse committed by the responding party is
referred to as stone-walling or obstructionist conduct.
Such misconduct is dealt with, both on a weap-
on-by-weapon basis,1 and more generally in the chap-
ter that follows.2 It is not the subject of this chapter.
Rather, we are presently aiming at abuse committed
by the submitting party.
Under ordinary circumstances, your responses
and defenses, like your enforcement plans, will be
weapon specific, as is the case with most advised
strategies. Each of the six discovery weapons has its
own particular set of defensive maneuvers, which are
dealt with in their respective weapons chapters.3
Chapter 12, generally is devoted to the science of
defending discovery requests. Nevertheless, there are
times when the blows are so low or the bombardment
so intense that the attack cuts across the chapter’s
lines and requires aggressive affirmative conduct in
the form of a motion for a protective order.
We start our defend-and-destroy mission by
dividing our enemies according to their motives.
Indeed, that rule of rules which sets down the funda-
mental scope for all of our discovery, does as much.
In particular, Rule 26(b)(1) of the Federal Rules of
Civil Procedure tells us that the enemy is entitled to
“information” that is “reasonably calculated to lead to
the discovery of admissible evidence.” The term “rea-
sonably calculated” places the enemy’s motive right
in the spotlight.
There are two basic sets of motives. First, there
are those discovery initiatives prompted by exterior
considerations; i.e., purposes unrelated to the desire to
obtain admissible evidence or information calculated
to lead thereto; they are referred to as “ulterior
motives.” The exposure of an enemy’s ulterior motives
should lead to his defeat. By contrast, those discovery
initiatives based upon interior motives are proper on
their face because they are intended to lead to the
uncovering of admissible evidence. They are also
designed to apply pressure, stress and delay. Discovery
prompted by interior motives can be aggressive (as it
should be) or excessive, in which case a protective
order may be warranted.
By and large, the overwhelming majority of
abusive discovery requests involve so-called interior
motives. For even if the motives were ulterior, most
attorneys take steps to disguise their hidden agenda.
Much of this chapter will, therefore, be directed
toward targeting and defending against the proponent
who seeks to gain a litigation-related advantage
through abuse.
Regardless of whether the abuse is interior or
exterior, always remember to make a record that can
later be presented to the judge, if necessary. Written
discovery abuses such as excessive interrogatories or
requests will, by their nature, provide the necessary
paper trail. Deposition abuse is another matter. For
lawyers who are known to misbehave, consider video-
taping the depositions or, at the very least, describing
the misbehavior on the record. For abuses directed
at your deposed client or expert (when defending
the deposition), you might even consider asking the
deponent whether he or she feels harassed, insulted,
or intimidated. Where the abuse, however, exceeds the
scope of such remedial measures, consider requesting
the court to appoint a special master or overseer.4
§16.11 Ulterior Motives
Rule 26(b)(1) of the Federal Rules of Civil
Procedure defines the limits of “proper” discovery.
Any purposes or motives outside of that defined
region may, therefore, be presumed ulterior and
improper. We can start with the proposition that
admissible evidence is clearly discoverable because
such evidence would be relevant in the strict sense of

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT