We have a discovery problem in civil litigation in Mississippi. And Thursday’s Mississippi Supreme Court decision in City of Jackson v. Rhaly will do nothing to curb the problem. The Court affirmed the entry of a default judgment against the City of Jackson for discovery abuses.  

I previously wrote about Rhaly here and here.

This was the case where Hinds County Circuit Judge Swan Yerger entered a default judgment against the City for not producing a policy and procedures manual that the plaintiff found anyway before trial. The Court of Appeals affirmed.

Here are the key discovery requests and responses:

Request No. 2: Any standard operating procedure (SOP’s) which govern the site of the subject incident.

Response No. 2: None. Will supplement upon receipt of any information.

Interrogatory No. 20: Please describe any claims or lawsuits that have heretofore been brought against this Defendant by reason on an incident or injury at the same or similar location, or a similar type of incident at some other location for five years prior to the subject incident and at any time subsequent thereto.

Response No. 20: The City of Jackson is not aware of any lawsuits filed five years prior to the subject incident. 

There turned out to be a policy and procedure manual and another lawsuit. The majority states: “[t]he existence, vel non, of ‘water quantity control’ policies and procedures, as well as similar incidents in the past five years, was clearly relevant to the issue raised in the complaints.” The Court did not explain how it was relevant.

Justice Randolph wrote the Court’s 6–2 opinion. Chief Justice Waller and Justice Dickinson dissented. 

 Joe Kerley of Jackson represented the plaintiff. Pieter Teeuwissen and Claire Barker represented the City. The actual discovery screw ups were committed years ago by other city lawyers who have long since been gone from the City Attorney’s office.

My Take:

I am biased in favor of the City. I am one of the innocent taxpayers who are the real parties in interest, as referenced in Justice Dickinson’s dissent. I hate to see the City losing lawsuits costing it City money that it doesn’t have.  

With my bias disclosed, here are a few random comments on the decision and discovery practice in Mississippi:

  • Ironically, this decision will create more discovery disputes. Rather than say you don’t have any documents, it’s safer to just object to everything. Courts don’t do anything about boilerplate objections and parties can always hide behind them if the other side finds the evidence on their own. When I first started practicing, litigants didn’t object to every request. Not anymore. It sucks.   
  • The City of Jackson is the only defendant who Judge Yerger would have defaulted under these facts. Judge Yerger was a defense leaning judge, except where the City was concerned. Check his record in bench trial cases against the City compared to his routine grant of summary judgments in other civil cases.
  • The strongest argument for affirming was the applicable abuse of discretion standard of review. While I think Judge Yerger got it wrong, I could probably be convinced that the Court got it right finding that Yerger’s ruling was not an abuse of discretion. Judge Yerger probably gets affirmed here either way he rules.  
  • Neither the Supreme Court’s opinion nor the Court of Appeal’s opinion articulated why the discovery at issue was relevant—something I want to know. It’s my understanding that the relevance of the evidence was not articulated at any level of the proceedings. That makes this seem like a "Gotcha!" ruling.
  • It’s hard to reconcile this decision with the Court’s opinion in Ford v. Tennin, 960 So. 2d 379 (Miss. 2007). In that case, Judge Kidd ordered a new trial for Ford’s alleged discovery abuse. The Supreme Court reversed, finding Judge Kidd’s ruling was an abuse of discretion.
  • If the Supreme Court wants to stop discovery abuse, then it needs to do something about parties objecting to every discovery request. In Tennin, the Court said take up each specific request with the trial judge. But trial judges don’t want to (or have time to) hear it, so that’s not much of a solution. The Court could at least identify some discovery requests that are per se valid, such as expert information, witnesses and trial exhibits.
  • In retrospect, the City should have imitated other parties who don’t produce evidence they have and assert boilerplate objections. It worked for Ford in Tennin and it is utilized by litigants everyday in Mississippi civil practice.