Pouncing on Little Ambiguities Leads to Discovery Sanctions

A recent ABA article describes a court sanctioning a litigant for pouncing on “any little ambiguity” to obstruct discovery and delay production of “obviously responsive materials.”  Debra Cassens Weiss, Judge criticizes [law firm name omitted] and [litigant’s name omitted] for alleged effort to ‘obstruct and delay’ discovery (abajournal.com) (Sep. 16, 2022).  According to the article, the “witness wouldn’t answer basic questions” and was instructed not to answer deposition questions 22 times.  The objecting lawyers alleged “unreasonable and incessant” demands for documents.

I don’t know any of the facts of that case and therefore don’t comment on it.

In connection with the Sedona Conference’s Cooperation Proclamation, Kenneth J. Withers, Esq., wrote of “a litigation culture of ‘fierce warriors’ gone haywire.”  “When E-Mail Explodes,” San Diego Lawyer, Nov.-Dec. 2008 at 36-38.  “Discovery practice, long thought to be the most contentious and unprofessional aspect of litigation practice, is plagued by the  conventional ‘wisdom’ that during discovery a lawyer should stall, obfuscate, contest all discovery sought and produce only what cannot be withheld.” The Hon. P. Grimm, et al., New Paradigm for Discovery Practice: Cooperation, 43 Md. B. J. 26, 27 (2010).  These “war of attrition” practices threatened to close the court house doors to litigants of moderate means. See id. at 28.

In Maryland, the duty to cooperate dates back at least to a 1941 law review article.  See Michael D. Berman and The Hon. Paul W. Grimm, “The Duty to Cooperate in Discovery,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n.2020),  319-20 (citation omitted).

A 2014 You Tube video, Verbatim: What Is a Photocopier? | Op-Docs – Bing video, by Brett Weiner, provides a wonderful example of what not to do.  “When you say photocopy machine, what do you mean?…. There’s different types of photocopy machines…. It’s not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, [or] that uses scanning technology.”[1]

______

[1] The video “re-produces the dialogue contained within the transcript exactly,” however, there is artistic license by the actor.  Hilarious transcript of lawyer’s argument with witness over definition of a photocopier is turned into a short film – Legal Cheek (Apr. 30, 2014).  The cited blog reproduces the transcript.