NMC reported last week on the Order issued by Northern District federal court Judge Mills in the Maggette v. BL (Grand Casinos) case. The Order addresses flagrant deceptive discovery practices by the owners of Grand Casinos and their lawyers. Judge Mills’ Order followed two special master reports in the case that you can see here and here.

Judge Mills recognized that the reason that BL and its lawyers got caught was because of the unusual step of a special master being appointed to wade through the discovery morass:

It seems very likely that, if the Magistrate Judge had not taken the extraordinary step of appointing a special master, the truth in this regard would have never been revealed.

I applaud Judge Mills, Magistrate Judge Alexander and the Special Master for exposing this deplorable conduct. But the sad fact of the matter is that many lawyers believe stuff like this happens all the time in civil actions in Mississippi with no repercussions. I share that opinion.

Some people refer to these tactics as “hardball” litigation tactics. But they have become so prevalent in recent years that even good lawyers who usually don’t stoop to hardball tactics are starting to fall into the resistant blocking pattern discussed below.

Typically what happens is what I suspect happened in this case. Defense counsel and their client intentionally remained blissfully ignorant of the existence and production of responsive material so that they could later have plausible deniability in the highly unlikely event that their conduct was ever exposed.

It starts with improper boilerplate objections to all are almost all discovery requests. In my practice most defendants assert boilerplate objections to almost every single written discovery request. The boilerplate objection is sometimes followed by a “without waiving this objection” partial response. While I recognize that this is sometimes a legitimate discovery response, it is not a legitimate response if this is the response to every request.

Defendants believe that this allows them to pick and choose what to produce in discovery. They can produce some documents under the partial response and withold others under the objection. Judges rarely recognize that this is a threat to the integrity of the judicial system and strike these types of objections.

I am seeing this type of response to requests for Rule 26 information on experts and the identity of trial exhibits and witnesses. It’s my impression that many lawyers believe that by objecting to everything, they are not accountable for not producing relevant and discoverable information.

Why do defendants and their lawyers do this? Because they can. Courts almost always let them get away with boilerplate objections that leave the plaintiff wondering if they are getting a complete response. Magistrate Judge Davis is the only judge I’ve had that held a defendant accountable for this and struck the boilerplate objections.

My impression is that most judges view complaints about improper discovery responses as whining. Judges just don’t want to hear it. In addition, when plaintiffs do try to get relief for improper boilerplate objections there are many judges at both the state and federal level who buy the defense side B.S. arguments on these issues hook, line and sinker.

There is a problem in the system that is not being addressed. And the problem is getting worse. I hope that Judge Mills bringing the situation to light in this case will be a wake-up call for the trial court judiciary in Mississippi.

This is primarily a trial court problem because discovery disputes are rarely an issue on appeal. But there are things that the appellate courts could do to stop this. For instance, there should be a model set of written discovery in state and federal court that imposes a presumption that the requests are not objectionable. A party who objects to the model discovery would have to do so with more than boilerplate objections. The objections would have to come with an affidavit that specifically identifies the basis for the objection. Sanctions should be mandatory if the objection is overruled.

The judiciary should take control over discovery abuses. Boilerplate objections should be struck and lawyers and clients should be held accountable for improper responses. Judge Mills’ Order should be a start to that process rather than a footnote in civil litigation that no one remembers a year from now.