DISCOVERY IS THE most important aspect of litigation for lawyers and their clients. Based on what is uncovered in this process, the case is valued and almost always settled. But discovery disputes are the bane of the judiciary. They usually signal unreasonable lawyers and/or clients who are unnecessarily involving the judge in a matter that should be resolved by agreement. This article offers advice and observations about discovery from the point of view of one judge.

It’s incredible to me that plaintiffs’ lawyers appear at structuring conferences and have basically no more knowledge about their cases than what their clients have told them. They appear surprised and uneasy when defense counsel explain their clients’ positions or produce documents that belie the plaintiffs’ claims. Filing suit without doing an adequate investigation beforehand can raise ethical issues about your conduct or at least lead to practical problems.

Rule of Professional Conduct 3.1 dictates that a lawyer shall not bring or defend a proceeding unless there is a basis for doing so that is not frivolous. The comment to Rule 3.1 discusses what is frivolous:

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

Failure to substantiate your clients’ claims before filing suit can also lead to practical problems. The entire case, or at least some of the defendants, might be dismissed. Worse, defense counsel won’t make an offer because she is sure her client is not liable. Your client thinks he’s got a good case; after all, you filed suit. You are forced to go to trial. These are the cases that are actually embarrassing to preside over. They confirm the jurors’ worst impressions about lawyers and the legal system. Do everyone a favor, including your client, and investigate your clients’ claims before filing suit. Get police reports, talk with witnesses, get medical records, etc., and know you have a case before you file it.

At a time of increasing concern that lawyers are pricing themselves out of the market, lawyers should consider whether interrogatories or depositions are necessary or whether less formal discovery methods would suffice. Discovery expenses generally represent 50 percent of litigation costs and depositions account for by far the greatest discovery expense. Ask yourself, particularly in straightforward cases, whether an informal interview of the opposing party or witnesses wouldn’t serve the same purpose of assessing the opponent’s claims as would a deposition. Since about 95 percent of civil cases do not go to trial, depositions are rarely used to impeach witnesses. Before you schedule a deposition, consider whether a document exchange and interviews of key witnesses would not provide the information necessary to prepare for mediation or to otherwise settle the case.

Avoid dragging judges into discovery squabbles.

It is rarely necessary to bring a discovery dispute before a judge. Much more likely, a motion to compel is filed because at least one of the lawyers is not playing well with others. I think that even when it is evident from the pleadings what the ruling on a discovery motion will be, the judge should get the lawyers into court for a hearing. Discovery squabbles usually signal a case that is spiraling out of control and a judge should address this as soon as possible. Superior Court Rule 36-A requires that before lawyers involve the court in a discovery dispute, counsel must attempt in good faith to settle the issue by agreement. Before you file that motion in court, remember that judges are not interested in tactical advantages or personality conflicts between the lawyers or clients. Judges want to move their cases along and, consistent with the purposes of discovery, they will resolve doubts in favor of full disclosure.

Is there anything more aggravating than thoughtless discovery practices that result in overly broad document requests and form interrogatories that are not relevant to this case? Start with what’s on your computer, but tailor your questions and requests to what makes sense for that particular case.

New Hampshire law favors liberal discovery. Trial judges have great discretion to control discovery and, consistent with the purpose of discovery, they tend to broadly and liberally interpret discovery rules. Superior Court Rule 35(b)(1) establishes the scope of discovery. Any matter that is relevant to prosecute or defend a party’s case is discoverable. Information need not be admissible at trial to be discoverable. It need only be reasonably calculated to lead to the discovery of admissible evidence. If you stonewall or play hide the ball with legitimate discovery requests, you drive up the cost of litigation and lessen your credibility with the court and your colleagues, for an issue on which you will ultimately fail.

Lawyers should never have to notice a deposition or file a motion to compel a deposition. When this happens, it is a sure sign that the case is out of control and that either one or both of the lawyers is being unreasonable or difficult. Life is too short to punish yourselves and each other in this way. Return your phone calls and cooperate in setting mutually agreeable times to depose your witnesses.

Don’t allow clients to drag out or sabotage discovery.

Lawyers have an ethical obligation to ensure that their clients do not frustrate discovery by responding slowly, incompletely or evasively to discovery requests, or by not making themselves available for depositions. Clients are often emotionally involved in the litigation or have personal agendas that are not proper considerations in determining what is discoverable. Lawyers are obliged to see to it that their clients provide the information requested. Lawyers must ensure that their clients, in responding to discovery requests: 1) refresh their recollection; 2) look through their records; 3) find out what their agents and employees know; and 4) respond honestly and fully and not rely upon semantics, defects in the requests or other technicalities to avoid producing the information sought.

Responsible and reasonable conduct during discovery is not only courteous, it is required by the Rules of Professional Conduct.

Rule 3.2 mandates that a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of his client. Dilatory practices or delay must not be used merely for a lawyer’s own convenience or to frustrate an opposing party’s attempt to obtain rightful redress. In order to pass muster under Rule 3.2, the lawyer’s course of conduct must have some substantial purpose other than delay.

Rule 3.4(d) specifically addresses a lawyer’s conduct during discovery. This rule dictates that a lawyer shall not "in pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party."

Disclosure of experts is a frequent source of discovery disputes. Superior Court Rule 35(f) requires parties to: 1) identify the names of each person they expect to call as an expert witness at trial; 2) provide a brief summary of the expert’s education and experience relevant to his area of expertise; and 3) state the subject matter on which the expert is expected to testify. Lawyers generally (but not always) meet these requirements with no controversy. Disputes most commonly arise over whether the fourth part of the rule has been met. Rule 35(f)(4) requires a party to "state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Any reports generated by the expert must also be attached to the disclosure.

This rule seems clear enough to me, but it is apparently not to some lawyers. If you’re in doubt about whether your disclosure is adequate, think about the purposes of this rule and discovery in general: to discover the truth, to allow each side to prepare adequately for trial, to prevent unfair surprise or trial by ambush and to encourage settlement. Does your disclosure provide enough information to satisfy these goals? Does your disclosure provide enough information to allow opposing counsel to decide whether he needs to retain his own expert? If you can fairly answer "yes" to these questions, your disclosure is probably adequate. If your disclosure is not adequate, you increase the cost of litigation, delay the case and risk being prevented from calling the expert at trial or being sanctioned in some other way.

Not all documents in your file are privileged. If you withhold otherwise relevant documents on a claim of privilege, you have the burden of proving that the document is confidential. Broad or general assertions of privilege are insufficient and constitute a waiver of any privilege, even if an adequate disclosure would have demonstrated that the document is work product or subject to attorney/client privilege.

The party claiming a privilege must prepare an index that itemizes the documents withheld, summarizes the contents of the documents and justifies the withholding of the documents. Such detailed information is necessary to provide the court with a sufficient basis to determine whether the documents are privileged and to provide opposing counsel a fair opportunity to object. Even with this information, it may still be necessary for the judge to review these documents in camera before a determination about privilege can be made.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer