Discovering it Again
I’ve written before about the discovery process and how important
and critical it can be for your litigated case. I have also written about
how problematic discovery can be in most seriously litigated cases, and
the problems that
others have had, new rules to
address these problems,
how to avoid the problems altogether, and
how to get information on
your own without only
relying on your opponent. No matter how you look at it, that’s a lot written
about discovery right there. But I got more.
The discovery process is a never ending source of material. The part of
a lawsuit that takes the most time, effort, and money. It is also the
part of every lawsuit where the case can be won or lost.
I got a Couple
Recently, I had an opposing party tell me they only have one, two, “a
couple” or three (it kept changing) accounts at an institution.
They produced some documents for each account that were not anywhere complete.
I didn’t appreciate the partial production and the uncertain nature
of the number of accounts they had. So we served subpoenas to get the
records straight form the source. When we got the returns from the subpoenas,
it turns out “a couple” was, as suspected, closer to being
a dozen. I suppose they just forgot to disclose the other ten accounts.
In this case, I have brought two motions to force the other side to follow
the discovery process and prevailed on both. I didn’t get everything
I asked for, but, as in life, you never do. But in the last one, I got
a detailed Order with specific times and descriptions of documents (paper
and electronic) the other side had to produce. The Judge has been wonderful
in allowing us to bring these motions and then quickly getting Orders
out on them.
Expecting Adversaries to Cooperate
I suppose you are asking why is a Judge “wonderful” for hearing
motions about disputes in a case and then deciding what to do about them?
Isn’t that his job? Well, yes and no, so maybe. It is safe to say
all Judges dislike discovery disputes. The Rules of Civil Procedure are
so broad with an over-inclusive definition of relevance. Relevance is
so broadly defined it requires the attorneys to produce almost everything
anyone asks for that’s tangentially about the case. And the attorneys
are expected – says so right in the rules – to cooperate and
produce what is required.
In reality, the discovery process is actually an adversarial process. Turning
over the evidence your opponent needs to win the case is contrary to your
client’s best interest in a competitive battle of advocates. There
is little to no cooperation between sides, and discoverable information
is routinely held back. This violates many rules, and not only discovery
related rules at that. So what’s the big deal? Take it up with the Judge.
Playing the Odds
The fact is many Judges loath to be involved in any discovery disputes
and will avoid them if they can. At least in my experience, this leads
to intentional non-compliance that seems safe and beyond repercussion
because just by playing the odds, you can be fairly certain you can get
away with a lot. The Rules are there and are sufficiently effective tools
if they can be enforced.
The key is to aggressively exercise the right to obtain that information
and to not relent. Sounds straightforward enough and in line for the job
description of any litigator. Except for one big problem. The cost of
enforcing these rights can be skyscraper high.
Due to the time-consuming nature of attempting to confer, and documenting
your attempts, to obtain compliance short of court intervention, researching,
compiling, drafting, reviewing and researching responses, then researching
and drafting replies to the responses, preparing for hearings and then
attending the hearing and arguing the motions just to maybe obtain part
of what you have the
right to obtain and what is needed for the case. That is
if you can bring the motions in a timely manner, as back-logged dockets may
mean discovery motions are not heard, argued, or decided until time-sensitive
issues have passed.
Due to all of this, many motions that should be brought and discovery answers,
responses and document productions that should be disputed are not. This
could have a significant impact on the outcome of a case. It may only
alter the value of some cases, but for others it can be devastating and
result in a loss. The price for justice should not be too high to obtain.
MKT Law’s Solutions
At MKT Law, our extensive experience is used to know which fights must
be fought, which ones to avoid, which ones with a price too high to start
and how to avoid certain fights altogether. Due to extensive experience
with discovery disputes, MKT Law has streamlined processes that help keep
costs down yet can be effective in obtaining necessary information.
Using comprehensive knowledge of the Rules of Civil Procedure and their
applications, we can obtain better productions in discovery while simultaneously
spending less time to do so. We focus on the discovery issues necessary
for the case and do not spend good money engaging in fights over less
important, non-essential information withheld. This know-how and understanding
not only keeps costs down, but also creates a more focused overall strategy
that strengthens our client’s positions and increases our odds of
obtaining favorable results.
800.762.661 to speak to our Minnesota litigation attorney about your legal problems.
We would be happy to sit down and talk about how we may help you and your
business out during a