Exposing Burdensome and Abusive Tactics

• Author: Ashley S. Lipson
• Pages: 947-962

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