Mellowitz: Judges should not ignore discovery violations

November 4, 2015

By James A. Mellowitz

There had been seven motions to compel. A motion for contempt. A motion to disqualify lawyers from representing a former employee. A motion for sanctions for failing to mediate in good faith.

The defense lawyer had refined delay, evasion and obfuscation to an art form. Discovery requests were never answered on time. This led to emails asking for a response. Eventually, a response would claim that black-and-white requests could not be understood or were all objectionable. Which led to more emails. Which might lead, eventually, months down the road, to responses giving up a little bit but hiding most information. Which led to more emails. Which might or might not be ignored, and inevitably led to a motion to compel. Many months and much paper after the initial request.

Despite this escalating outrageousness, and even after granting most of the motions, the judge still refused to sanction the defense lawyer. In essence, the court rewarded these discovery violations by encouraging more of the same – more billable hours and more delay, all to the defense lawyer’s enormous benefit – but never more justice.

After 27 years in the trenches of civil litigation, most on behalf of injured plaintiffs, it is still shocking to see the blind eye that some judges turn toward even the most egregious violations of the discovery rules.

The unfortunate result of this judicial tolerance of improper and often unethical behavior is bad for everyone – backlogged courts, injured plaintiffs, frustrated counsel – except the defense lawyers making money off this behavior. It breeds contempt for the legal system, encourages ever more outrageous flaunting of the rules, and unnecessarily delays even the simplest cases. For the ethically challenged litigator, it encourages them to fly ever closer to the flame. And it wastes everything, from time to money to belief in the system.

It is, from my perspective, the number one problem in civil litigation.

The solution is simple. Stop discovery violations early with serious sanctions. Not just granting the seventh motion to compel, but awarding attorney fees and costs. Enforce Trial Rule 37(A)(4). Send a message that intentional rule violations will not be tolerated.

The effect will be amazing.

The problem seems most acute in urban state courts. Federal judges don’t seem to tolerate such games. And some rural county judges – whether because they don’t know the big city lawyers or just subscribe to tougher old-school beliefs – take a refreshingly harder approach as well.

In one case, a southern Indiana judge well-known for his zero-tolerance policy repeatedly hammered Hamilton County defense lawyers: $3,750 for evasive discovery responses; $600 for not disclosing second-layer excess insurance; $7,500 plus interest for failing to pay the settlement when due. The effect was dramatic. Discovery responses were timely and more forthright. The case moved quickly toward resolution.

So why don’t many judges enforce the rules of discovery more vigorously?

Maybe they don’t like messing with little discovery “disputes” that rarely involve interesting or significant questions of law and are usually mired in document-intensive details of requests, responses and follow-ups. Some judges, understandably, don’t like messing with this and routinely turf such issues to magistrates and pro tems who are even more timid.

The reality, however, is that failing to enforce the rules only creates more of the problem. Cases don’t go away. They grow in size with the many discovery filings. They linger on the docket.

And the effect is to embolden counsel to evermore outrageously violate the rules and test ethical limits. For lawyers already challenged in this department, not getting hammered the first time means likely not getting hammered the second, third and fourth time. Like a child testing the limits of parents’ boundaries, they move closer and closer to more unethical and dangerous behavior – the type that can eventually put them before the disciplinary commission. A judge who hits them hard and early is really doing such lawyers a favor.

Not enforcing the rules also hurts the cause of justice. Most civil cases are won and lost in discovery. Letting litigation happen the way it should encourages prompt and just resolution. Allowing it to drag on through endless manufactured discovery “disputes” lets defendants avoid the truth. That leads to unfair and unjust results.

The reality of civil litigation is that discovery boundaries are very broad, the vast majority of discovery requests should be answered in full, and there are very few legitimate discovery disputes. What most defense lawyers call a dispute is nothing of the sort. It is instead merely the game of delay and evasion that too often characterizes litigation.

Trial Rule 37(A)(4) provides the tool for solving this problem. It requires the granting of expenses for motions compelling discovery in most cases:

“If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” (emphasis added).

Rarely is opposition to discovery “substantially justified.” Rarely are there “other circumstances” making sanctions unjust. As a matter of fairness and policy, sanctions should be routinely granted. If they were, much of the nonsense would stop and justice would be served.•


James A. Mellowitz is an injury attorney with the Mellowitz Law Firm in Indianapolis and can be contacted at jmellowitz@mh-attorneys.com. The opinions expressed are those of the author.