Hard to get

You may find this familiar: the responses to document demands have come in, and the production was thin. Suspiciously thin. As in a couple pages. What used to be more isolated has been becoming more and more common. Non-answer answers to discovery. Non-production production. Persons least knowledgeable. These seemed to be used increasingly as tests: are the plaintiffs’ lawyers willing to do the extra work to jump through court hoops to get what the parties should be required to produce?

If you give an opposing counsel an inch…

We know we’re not the only ones experiencing this. Why is it happening? There are a variety of possibilities. Plaintiffs’ work favors efficiency. Defense work favors billables. Sometimes some plaintiffs’ lawyers (but certainly not you, dear reader) will take what they get in that first discovery round without holding the defense accountable. That apathy emboldens the defense. When one does hold the defense accountable through motion practice, state courts tend to keep sanctions in the low to none range. If the ruleset says most plaintiffs’ lawyers won’t follow through since it is too hard — and if they do the penalties are minimal — can we blame the defense for their approach? It is incumbent upon us to change the narrative. The reasons go beyond holding folks accountable. Beyond laziness and testing us the defendant sometimes attempts to hold back the harmful facts. We won’t know that until we push (and push, and push).

The necessary steps

When responses look incomplete, the first step is to be direct without being accusatory. Identify the concerns (in writing) to prepare the groundwork for what might later require motions. Don’t assume ill intent on behalf of the defense counsel. They are overworked, underpaid, and often kept in the dark by their clients. Help them do their job and reach their billables by holding their clients accountable. As one moves through the meet and confer process one should create a record that is unambiguous. When the meet and confer fails to produce results (which it most likely will), the motion to compel is the next step.

Judges notice which lawyers follow through. They also notice which ones don’t. Filing a motion to compel signals something: this side is serious. When the court grants the motion and orders further responses, compliance is not optional. If the defense fails to comply with a court order, the arsenal expands. Motions for issue sanctions can preclude the defense from contesting facts. Terminating sanctions, while rare, are available when the conduct warrants them. The existence of these tools matters less than the willingness to use them.

What gets found

There is a direct reason to fight for thorough responses and production beyond making a point. The reasons for failing to provide complete responses are multilayered. One can be laziness or a test. Another is that the information is harmful. In a recent case, a defendant driver acknowledged eye issues during a deposition in a disputed liability collision. It took six months and three motions to get the eye doctor’s name and then the records. What did we learn? That the driver had an eye procedure immediately before the collision, that the procedure temporarily altered one’s vision, and that driving was forbidden. That’s case-altering: an amendment for punitive damages followed. If we were not diligent, we would not have altered the playing field in such a significant way.

How the defense reads it

Defense counsel and carriers pay attention to the firms and lawyers who are willing to do the work. The lawyers who follow through, build their cases for successful trial outcomes, and are willing to try cases are the ones who get their clients the best resolutions. One does not need to be a trial dog to get there. The work on the eye records described above was performed by a younger talented lawyer who simply would not back down. Doing this work has a secondary benefit for everyone in our trade.

If we all perform the work, if we all hold the opposing sides accountable, we raise the trial bar for everyone. And for those who truly slam wrongdoers like the firm that caught defense counsel texting witnesses in deposition about how to answer questions (props to Steven Azizi, Caitlyn Handy, and Justin Hanassab for Joe Joven v. Dreyer’s Grand Ice Cream Inc. et al.,  Alameda County Case No. 24CV075650 — search it up for more), know that what helps one case helps us all.

A version of this article originally appeared in Plaintiff magazine, where Miles has written his monthly Back Story column for almost 15 years. Interested in Plaintiff and its coverage? Read more at plaintiffmagazine.com.