Archive for the ‘requests for documents and deposions’ Category

The Lawsuit Discovery Conumdrum

February 9, 2014

What happens when the parties to a lawsuit refuse to follow the rules? In a civil lawsuit (non-criminal) the plaintiff and defendant can request information, called “discovery,” from each other. The procedures governing this exchange of information is called “The Massachusetts Rules of Civil Procedure.” Every state and the Federal courts have similar rules. Each side in a lawsuit can request answers to interrogatories, in layman’s terms, “questions,” documents and depositions which are the taking of witness statements under oath. The Rules rely on the good-faith and ethical behavior of the parties and their attorneys. The Rules only work if everyone agrees to tell the truth. Attorneys, as officers of the court, have a special duty to follow the discovery rules and to advise their clients to act in a similarly truthful manner. However, as the Romans came to understand ” Who will guard the guards?” What happens when attorneys stop following the discovery rules and when winning trumps everything else? Federal District court judge, Michael A. Ponsor, in Massachusetts, was faced with that very problem in the case of Angiodynamics, Inc. v. Biolitec, AG, and others, C.A. No. 09-cv-30181-MAP. The plaintiffs  filed a motion seeking entry of default on the issue of liability based upon the defendants continuing failure to comply with their discovery obligations. After repeated disregard of the court’s discovery orders by the defendants and their lawyers, judge Poser granted the plaintiff’s motion. The court stated that it allowed the plaintiff’s default motion… “[b]ecause the defendants’ misconduct during the course of discovery has travelled well beyond the boundary of what is even remotely acceptable in the conduct of litigation.” The court also stated, in explaining its decision, that  the plaintiff …” has been attempting to conduct discovery to prepare for trial. Plaintiff has been thwarted at virtually every turn by Defendants’ outrageous misconduct.” The judge’s decision was especially revealing in that it found the defendants and their attorneys had conspired to impede the plaintiffs discovery and to block the court’s enforcement of the discovery rules.  The disregard of the discovery Rules has now become almost routine. Defense attorneys grind out one motion after another in an effort to deny plaintiffs’ attorneys the evidence they need to properly prepare their cases for trial. The defense team rarely gets sanctioned for its obstreperous conduct and therefore the risk is worth the benefit. Until the courts begin to vigorously enforce the discovery Rules delay and obfuscation will become the order of the day. All the while lining the pockets of defense lawyers who assert frivolous objections to legitimate discovery requests by plaintiffs’ counsel.

Copyright 2014

All Rights Reserved

Arthur F. Licata