Personal Injury Law: Courts Should Curb Discovery Abuse
Courts have the authority to curb discovery abuse. Lawyers have ethical obligations not to engage in discovery abuse. The right of a litigant to discovery is primarily the right to obtain information. Yet despite all of this, discovery abuse in civil litigation remains common. This undermines the integrity of the judicial process, and prevents trials from being what they are intended to be: a search for the truth.
Discovery abuse takes a variety of forms including evasive discovery responses, boilerplate objections to written discovery, speaking objections during depositions, the failure to produce responsive documents, and even making misrepresentations. Such conduct is directly contrary to the very purpose of discovery: to ensure that lawsuits are decided by what the facts reveal, not by what facts are concealed.
Because discovery is a search for the truth, the rules of discovery are designed to serve the ends of justice by facilitating an intensive search by providing procedural mechanisms designed to make a trial a fair contest with the basic issues and facts disclosed to the fullest practicable extent. "Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice." Haeger v. Goodyear Tire and Rubber Co., No. CV-05-02046-RHX-ROS (D. Ct. Ariz., Nov. 8, 2012).
Courts and lawyers have the authority and tools to prevent discovery abuse. Courts have the discretion to issue sanctions including orders of default, establishing facts for the purpose of the pending case, costs and attorney fees.
Two recent decisions in product liability cases in federal court illustrate what courts can do to curb discovery abuse, the Haeger v. Goodyear case cited above and Bates v. Michelin North America, 1:09-cv-03280-AT, Document 269 (N.D. Ga.) (Jan. 13, 2012).
In Haeger, there had been a tire failure, which was alleged to have caused a motor vehicle accident. The tire was intended for pickup trucks but was being used on RVs. Goodyear conducted tests that revealed that there would be tire failures at certain temperatures and at certain weights. Even though the results of Goodyear's testing on the tire had been requested by the plaintiffs' counsel in written discovery multiple times, local counsel, national coordinating counsel and Goodyear did not provide this particular test.
Upon reviewing Goodyear's discovery responses, plaintiffs' counsel did not believe that the company was in compliance with its discovery obligations. Several hearings took place regarding Goodyear's responses. On multiple occasions in front of the court, local and national counsel represented that all the testing that had been requested had been provided to the plaintiff. After case was settled, the plaintiff's lawyer became aware that the testing he sought had been disclosed by Goodyear in a trial involving the same type of tire in Florida. These tests results were harmful to Goodyear's position. The lawyer then brought an action for sanctions against Goodyear's local counsel, national counsel and in-house counsel.
The Haeger court concluded that Goodyear's national coordinating counsel "deliberately withheld these responsive documents in the best interest of Goodyear." In addition, the court found that local counsel and national coordinating counsel's testimony, at the hearing for sanctions, conflicted with the documentary evidence and was not credible. The court noted that national counsel and Goodyear "engaged in repeated deliberate attempts to frustrate the resolution of this case on the merits" and that Goodyear and its attorneys "adopted a plan of making discovery as difficult as possible, providing only those documents they wished to provide, timing the production of the small subset of documents they were willing to turnover such that it was inordinately difficult for plaintiffs to manage their case, making false statements to the court in an attempt to hide their behavior."
The Haeger court noted that "the little voice in every attorney's conscience that murmurs turn over all material information was ignored." It held that the actions of the lawyers were in bad faith and that the national counsel and Goodyear would therefore be jointly responsible for 80 percent of plaintiff's counsel's legal fees, and that its local counsel was responsible for paying the remaining 20 percent of the fees. On August 26, 2013, the court entered judgment against the lawyers and Goodyear in the amount of $2,741,201.
Similarly, in the Bates case, in January 2012, a federal judge in Atlanta ordered Michelin to pay attorney fees and found that the tire that was the subject of that case was "defective and unreasonably dangerous" in sanctioning the tire-maker for nearly two years of discovery abuse." In defaulting Michelin as to the issue of the product's defectiveness, the court noted that a prior sanction order in the amount of $17,000 was evidently not sufficient deterrence.