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.