“If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.” Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989).
The First Judicial District of Pennsylvania, better known as Philadelphia state court, is one of the most efficient high-volume civil justice court systems in the country. Part of this success owes to the “Day Forward” program implemented years ago, which years ago began pooling together all the cases of a given year together for management by a single judge, particularly when it comes to discovery disputes. (Years later, in 2009, the American College of Trial Lawyers began recommending “A single judicial officer should be assigned to each case at the beginning of a lawsuit and should stay with the case through its termination.”)
To avoid an endless hell of discovery-related oral arguments, the “team leader” judges schedule one day each week to batch together all of their discovery motions for that week. By the time 9am rolls around, the bulk of motions end up either abandoned, withdrawn, or entered by agreement, after which the contested motions are heard one after the other. Litigators love to complain about discovery court, because sitting through even 15 minutes of someone else’s oral argument when you’re ready for yours can feel like spending a day in a traffic jam, but I tend to sit back and listen, to see what works and doesn’t work for the lawyers, and to see the judge’s general approach to the discrete issues presented.
Last week, I listened to a dozen or so motions, and virtually all of them involved a party unreasonably objecting to discovery.
The first involved a motion to compel a deposition and to award sanctions; the party had already been ordered twice to appear for the deposition, but had failed to do so, ostensibly because they were hospitalized. A fair enough excuse, except that the lawyer seeking the deposition had already been burned before with that excuse. Plus, as it turned out, the excuse was based only on a discussion the lawyer opposing the deposition had with the party’s mother two weeks before the hearing. The judge was upset (rightly so) and scolded the lawyer for not having better information than that, but declined the sanction. I bet those lawyers will be back in a month.
The second motion was nominally an uncontested motion to compel a deposition, except that the responding party contested everything about the deposition, from having it at all, to the location, to the subjects of the deposition. Not one of these objections was meritorious (and, thankfully, none of them was sustained).
The third motion involved a variety of issues in one case. The big issue that consumed most of their time turned out to be answered by the relevant statute (unsurprisingly, it was answered against the objecting party), which nobody referenced for the first 10 minutes of their argument. The remaining issues were not open to reasonable disagreement; one party served reasonable factual interrogatories, and the other party inserted a pile of boilerplate objections followed by worthless verbiage that would be true in every case.
Several motions ended up resolved by agreement when the judge made the parties talk things out. Several motions ended up continued to next week when one party dumped on the other party amended discovery answers. (I saw one responding lawyer complain bitterly about how the motion was frivolous because he had provided the answers, and then loudly sighed when the moving lawyer asked for a copy. The moving lawyer glanced at them and noticed the cover letter said the answers had been served the day before by mail and thus obviously had not reached his office yet.)
And on, and on, and on.
For my motion, I wanted documents I had requested through written discovery and through a corporate designee deposition, where the designee turned up and said he had reviewed the documents I requested but hadn’t actually brought them. When it came to my turn, I said my piece, the judge turned to the defense lawyer, who said not word about the substance of the discovery I requested. It was all about how I had not conferred with him “in good faith.” This was rubbish, of course — we’d talked about this plenty, including through emails and calls, and a deposition on this very subject — and the judge saw through it.
But it did remind me of a trend I’ve been seeing lately. Many courts, including the federal courts, have a requirement that each discovery motion “include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” See Fed.R.Civ.P. 37. Pennsylvania doesn’t have a state-wide rule, but many of the counties have a rule. See, e.g., Philadelphia Civil Rule 208.2(e)(“On the day the Discovery Motion is argued, the filing party shall present to the Discovery Judge an Attorney Certification of Good Faith … certifying that the filing party has conferred with all other parties in an attempt to resolve the discovery disputes at issue”).
On its face, it seems like a good idea, one that presumably should save both the parties and the court time by making the parties actually discuss disputes before heading down to the courthouse. I suppose that, in some smaller cases, the rule might help avoid the unnecessary filing of motions that can be resolved by a polite (or not-so-polite) reminder.
But in the larger damage cases I have seen the “good faith” (some courts call it “amicable resolution,” others a “meet-and-confer”) requirements abused with alarming and increasing frequency. Here’s how it works:
1. I send discovery.
2. The defense lawyers either don’t answer at all, or they serve boilerplate objections.
3. I send a letter telling them that their answers are deficient.
4. Maybe they send a lengthy response, all paid for by the insurance company, in which they repeat the boilerplate objections.
5. Maybe I send a letter to them; it depends on how futile it appears. (Usually, it appears completely futile — they have sent me boilerplate objections more than once, why would I expect to get anywhere with a third request?)
6. I file a motion to compel better answers.
7. The defense lawyer appears at the hearing and acts shocked and hurt, and contends that “good faith” means not just ‘an honest attempt,’ but rather means that I have to modify and withdraw all of my discovery until they are comfortable with it.
Shockingly, this sometimes works. An obstructing party that has made no reasonable effort to comply with discovery can sometimes buy themselves more time — and, as a bonus, waste their opponent’s time — by pretending that the requesting party has been unreasonable by not coming back for a fourth, or fifth, or sixth iteration of the same boilerplate, or by not being happy with a never-ending dribble of evidence (evidence that is, unsurprisingly, not the important evidence). The “good faith” requirement has been turned into a weapon by which obstructionist parties thwart disputes from even making it to the court.
The more I see it in practice, and the more I think about it, the less sense it makes. Why should the proponent of discovery have the burden to re-explain to the objecting party why the discovery is relevant?
Under the Federal Rules, the objecting party has the burden of explaining why the discovery is improper, and it’s well-settled that boilerplate objections are insufficient. “Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all.” Walker v. Lakewood Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal. 1999); accord Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 688 (S.D. Fla. 2011) (“[J]udges in this district typically condemn boilerplate objections as legally inadequate or meaningless.”); accord Ritacca v. Abbott Laboratories, 203 F.R.D. 332, 335 n.4 (N.D.Ill. 2001) (“As courts have repeatedly pointed out, blanket objections are patently improper, . . . [and] we treat [the] general objections as if they were never made.”). Two of those citations were borrowed from the excellent Matthew Jarvey, “Boilerplate Discovery Objections,” 61 Drake L. Rev. 913 (2013), which every civil litigator should read.
The end result of this practice — which I’ve noticed is used more often the higher up on the Fortune 500 list a defendant is — is a huge waste of time, money, and court resources. It is all typically connected to the same interests trying to limit civil discovery (as too expensive) and to deny access to civil justice, which comes as no surprise.
Discovery problems aren’t just technical annoyances to civil litigators. Obstructing discovery is like removing the hinges from the courthouse doors and the tiles from the courthouse floor. It thwarts a person’s ability to exercise their Seventh Amendment right to jury trial. “The history of American freedom is, in no small measure, the history of procedure.” Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J., concurring). The question is: are we going to allow ourselves to slide backwards toward what Wigmore called “the sporting theory of justice,” in which cases are decided more on how successful lawyers are in outmaneuvering each other than on the merits of the claims? In re Barnett 124 F.2d 1005, 1010-1011 (2d Cir.1941)(Frank, J.). Or can we re-direct the legal system so that more time is spent on the merits of cases and less time is spent on obstructing the quest for the truth?