Vol. 6, No. 6, Pg. 14. Discovery Sanctions.

• Author: By The Hon. G. Ross Anderson Jr.

South Carolina Lawyer

1995.

Vol. 6, No. 6, Pg. 14.

Discovery Sanctions

14Discovery SanctionsBy The Hon. G. Ross Anderson Jr.

[T]he lawyer's duties to maintain the confidences of a client and advocate vigorously are trumped ultimately by a duty to guard against the corruption that justice will be dispensed on an act of deceit. United States v. Shaffer Equip. Co., 11 F. 3d 450, 458 (4th Cir. 1993).

Disturbing developments in the field of discovery have become the centerpiece of conversation at judges' gatherings and lawyers' meetings. Discovery misconduct is escalating at an alarming pace at the expense of civility and justice. Unless checked, the damage to our justice system will be disastrous.

In a survey of litigators conducted by the American Bar Foundation, most respondents indicated that lawyers commonly draft interrogatory answers to withhold relevant, unprivileged information wrongfully. Wayne Brazil, Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 A.B.F. Res. J. 789, 829. Similar misconduct is common during document production in civil cases. Edward J. Imwinkelried & Theodore Blumoff, Pretrial Discovery: Strategy and Tactics§ 8:27 (1986).

The drafters of the 1937 rules of discovery would be appalled by the contorted view placed upon the rules by some present day litigators. Regrettably, an increasing number of lawyers equate litigation with war. Trampling the truth, taking no prisoners, scorching the earth--doing anything to win, regardless of the consequences, is their modus operandi. Clearly, the intent of discovery is to aid in the search for truth--the proper goal of all litigation.

Regrettably, an increasing number of lawyers equate litigation with war. Trampling the truth, taking no prisoners, scorching the earth--doing anything to win, regardless of the consequences, is their modus operandi.

The search for truth rests squarely on the professional shoulders and integrity of the lawyers involved. Trial lawyers owe a supreme duty and loyalty to the ideals of the justice system rather than the economic well-being of the

16parties they represent. The latter concern appears to be overtaking the former.

Judge William C. Conner of the Southern District of New York aptly commented on this more than 10 years ago:

Our adversarial system of civil justice rests upon access of all parties to all evidence bearing on the controversy between them, including that in the control of adverse parties. This, of course, requires the absolute honesty of each party in answering discovery requests and complying with discovery orders. Destruction or concealment by a party of relevant documents in its files threatens the viability and public acceptance of the system.

Litton Sys., Inc. v. AT&T Co., 91 F.R.D. 574, 576 (S.D.N.Y. 1981), aff'd, 700 F.2d 785 (2d Cir. 1983).

The initial responsibility for eliminating discovery abuse rests with the lawyers. As officers of the court, they owe a nondelegable duty of complete honesty and candor to the court. Zealous advocacy is admirable, but not at the expense of truth and justice. Lawyers must not abandon their primary loyalty to the court for the fleeting objectives of their clients.

The second responsibility is upon the judges. Rather than dismissing discovery disputes as "lawyer bickering," judges must recognize that discovery abuse creates injustice. Without judicial intervention to stop abuse of the discovery process, our justice system will suffer.

No other duty of a judge is more distasteful than having to settle disputes between lawyers. It is an area most judges would prefer to avoid, and many do. They often postpone decisions by having the lawyers confer to reach a compromise. Some take motions to compel under advisement ad infinitum, hoping the problem will go away. Others refer them to other judicial officers, and still others delay a hearing until the problem dies a natural death. This reluctance of some judges to enforce the rules exacerbates the situation. Lawyers are aware of which judges enforce the rules and which do not. The crisis will worsen until all judges take a stronger role in preventing discovery misconduct.

Most Common Abuses

By far, the most common discovery abuses are stonewalling and delay. Stonewalling lawyers answer discovery requests with feigned misunderstanding, unjustified objections or mere refusals. Some delay through continuous motions. The following are some of the most common stonewalling techniques.

Boilerplate Objections. Lawyers may respond with boilerplate objections to requests for interrogatories or production. When the objection is unjustified, especially if part of a pattern, the lawyer is stonewalling.

One such category of objections is that the discovery request is vague, ambiguous or too broad, or that the opposing party does not understand the question. See Pressley v. Boehlke, 33 F.R.D. 316 (VV.D.N.C. 1963); Francis H. Hare, Jr., et al., Full Disclosure: Combating Stonewalling and Other Discovery Abuses, 83-84 (ATLA Press 1994). Another objection is that a response would be unduly burdensome or prejudicial. See Rogers v. Tri-State Materials, 51 F.R.D. 234 (N.D.W.Va. 1970); Hare, supra, at 83.

A party may claim that the information sought is equally available to the other...