Comparison of Decisions in Discovery Abuse Cases Shows...Randomness
On Friday I discussed the Miss. Court of Appeals' affirmance of a default judgment against the City of Jackson for not producing a document in discovery. Over the weekend I compared the Court's decision to the Mississippi Supreme Court's 2007 opinion in the Ford Motor Co. v. Tennin case and Judge Mills' 2010 decisions in the Northern District case involving Harrah's Casino's discovery abuses. I discussed the Harrah's case here and here.
Here is a chart that compares the cases:
|
Harrah's Casino |
Ford Motor Co. |
City of Jackson |
|
U.S. Dist. Ct. |
Miss. S. Ct. |
Miss. Ct. of Appeals |
|
Harrah's didn't search for and withheld relevant documents |
Ford late in producing documents of questionable relevance |
City did not produce policy and procedure of questionable relevance. |
|
Court orders violated |
1 court order violated |
No court order violated |
|
Clear gamesmanship and dishonesty |
Possible gamesmanship |
Probably not gamesmanship |
|
Sanction: Harrah's vicariously liable for co-defendant; case proceeds to trial on liability and damages |
Plaintiff entitled to attorney's fees related to violated order |
Default judgment with award of damages, attorney's fees and expenses |
It appears that the City of Jackson case had the least bad conduct and the harshest sanctions. Harrah's conduct was clearly the worst. It looks sort of like the City got the death penalty for shop-lifting and Harrah's got probation for murder. Granted some people say that if you read between the lines Harrah's got hammered. My response is that you shouldn't have to read between the lines to see that Harrah's got hammered for what it did.
We've got a big problem in Mississippi with gamesmanship in discovery. Many lawyers believe that the main part of their job is to conceal relevant evidence. And for the most part, courts aren't doing anything to address the problem. The problem is likely worse elsewhere based on my experiences with out-of-state lawyers.
Here's an example. In many cases the opposing side objects to 80% plus of written discovery requests. What this means is that you have no idea if you are getting complete responses.
I would like to see courts do something to try to prevent this gamesmanship instead of making inconsistent rulings in cases where discovery disputes blow up. There should be model interrogatories and requests for production that are per se non-objectionable. If a party does object to one of the model instructions, it must be a specific objection supported by an affidavit.
Judges also need to understand that under the rules of civil procedure the burden is on the party resisting discovery. Many judges get it backwards.
A few years ago I was involved in a case with a discovery dispute where Magistrate Judge Jerry Davis presided over discovery. The opposing side objected to 90% of our discovery and claimed the sky would fall if they had to produce the documents that we requested. We had a hearing and Judge Davis told the other side that he always hears that the sky is falling, but it never does. He struck their objections and ordered production of everything we asked for.
The opposing party produced the documents, which were very helpful to our case. This led to the settlement of the case. Unfortunately, many judges are afraid to take the stance that Judge Davis did in that case. But if they did, there would be much less gamesmanship in discovery.
Unfortunately, what looks like "randomness" to you or I, the MSSC is likely to call "discretion."
Since the focus has been on defendants, allow me to note that I've had plenty of trouble getting responses from plaintiffs in some med-mal cases, including bogus claims of work-product and privilege that would warm a Mike Wallace's heart. Judges of course do not award me sanctions when I have to bring a motion to compel.
It has gotten to where the standard scheduling order seems backwards: I don't learn anything useful until I get the plaintiff's expert's report, and *then* maybe I can conduct meaningful discovery.
Huh? You're using the Magette case as an example of one where the defense got off EASY? Seriously? That's a very well known case in north Mississippi and I know of no lawyers here who share that view- just the opposite in fact.
Tangential, compared to the death sentence handed to the City of Jackson, the Magette case does appear to be getting off relatively easy.
In Magette, the defendants have the ability to prepare a defense. Sure, agency is established, but that is a far cry from directing a verdict. Last time I checked the docket, they are still preparing for trial and conducting depositions in Magette (after the 5th Circuit denied interlocatory appeal).
As I read Magette, I was expecting to get to a death sentence conclusion. It never happened. I am sure Christopher Garcia thinks otherwise.
If you read the opinion, Judge Mills listed the potential sanctions available and he chose the most stringent one and the one the plaintiffs themselves were arguing for. He chose an even more stringent punishment than the Special Master recommended, and the Special Master was very hard on the defendants. In addition to a finding of agency, there were a lot of fines and fees. So your argument is that Judge Mills should have done more than even the plaintiffs in his case were arguing should be done?
For some reason it seems that Judge Mills can do no right in the eyes of this blog, but he's widely regarded as a Judge who has no plaintiff or defense bias.
Judging by the comments, I must have done a bad job communicating in this post. Does anyone get the judge who I was critcizing? Hint: it wasn't Judge Mills.
I think everyone's still in glycemic shock from all that Easter candy, Philip.
I think the explanation is, as Anderson stated, that the appellate courts are not asked to decide on the appropriate sanction for discovery abuses. They only get to review the trial judge's decisions -- which are obviously granted a lot of leeway.
So what happened in this case? You have a false interrogatory response. Now, You seem to accept the city's contention that they disclosed the document but just failed to produce it -- but that's not what the trial judge or a majority of the COA found. The trial judge decided it was a false response. And so what was the city's explanation? The city attorney blamed it on the last administration. But read the opinion: the trial judge asked the city to present evidence at a hearing, and they declined to do so. So what's the record in the case? A false discovery response and overwhelming circumstantial proof that the city knew about the document it denied existed. And there's no explanation from the city, save an assertion of counsel to a fact not within his personal knowledge, about city attorney "turnover."
How does an appellate court take that record and conclude the judge abused his discretion in the sanction?
noone nailed it. Given an opportunity, the city chose not to explain. This tactic is common among parties with deep pockets. Afterall, if you can always claim an oversight or mistake with little/no consequence, why not take the risk and withhold discovery?
med mal cases are not typically discovery intensive, at least not for the defendant. Plaintiff has the medical records, which are authored by potential defendant. the defendant has everything else including all of the internal documents which are always withheld as "peer review" whether any peer review committee was involved or not. the only real discovery for the defendant is damage-related discovery. unless you are referring to the contention interrogatories i.e. "tell me what your theory of the case is so i can prepare my client how to answer questions at his deposition"..in which case there is no valid cause for complaining. i once told a defense lawyer to advise her client to tell the truth to which she responded "why would i ever do that?." no sympathy here.