Tuesday, December 08, 2009

Curmudgeon makes an unhappy discovery concerning discovery requests

My blogfriend, Dave, an Atlanta lawyer, was grousing yesterday about a case where his opposite number made the settlement of the case unusually difficult.

I read his post yesterday afternoon as I was starting my late afternoon check of my email. When I opened that up, I lost my temper.

Opposing counsel in one of my cases, on the eve of a status hearing in the Federal court, where we were supposed to set a briefing schedule on dispositive motions we've been jawing about now for months, decided instead that he needed to squeeze just one more round of discovery out of the case. He noticed up three depositions of my client's employees and subpoenaed someone they had contracted with. Accompanying these notices was a three page letter explaining how all this was our fault because of the alleged inadequate testimony of our 30(b)(6) witness.

(Don't know what a 30(b)(6) witness is? Don't worry about it... I'm on a roll....)

Problem was, this guy (our 30(b)(6) witness) had been deposed in August. They'd had the transcript since September. We'd been back in court before the District Judge and the Magistrate Judge both several times since -- and the supposed problems with this testimony were never raised.

But -- worse -- these discovery requests violated express agreements I'd reached (after painstaking negotiations) with counsel concerning discovery: I want to get the dispositive motions set. If the other side wins, the case is over but my client is at least spared the expense of this discovery. If I win, the only issue left is damages... and damages is the basic subject matter of those witnesses counsel now seeks to depose. I'd already told him and both judges that we could revisit damages discovery on the other side of the motions... if necessary. The judges (and this is always important) seemed receptive to this idea.

Oh... and one more thing... discovery was closed.

So... after I lost my temper (it just so happened I was speaking with my wife on the phone when I opened up the email and the various and sundry attachments to same and she got blistered by my bluster) I started going through all the old emails and identifying those when our agreements were formed and finalized. And I dug out the discovery closure order too. Eventually, I started typing.

I got the Motion to Quash done by about 10:00pm.

I texted Middle Son from the train that I was finally on my way home. I cautioned him not to wake up his mother... but could he come and pick me up at the station? "She's not asleep," he texted back, "but I'll come get you. Then you'll get it."

And so I did. Long Suffering Spouse does not like it when I come home so late. But I thought it was necessary yesterday.

It occurs to me that some people are honorable and will abide by their agreements. Some people are forgetful sometimes, not dishonest, and a prompt confirmatory letter or email will be wholly adequate to smooth over rough patches when they inadvertently occur. And then there are some people that have to be dealt with by certified mail, return receipt requested, preferably with a camera crew standing by to record the delivery of each letter. Yesterday evening, as I pulled out note after confirming note, my opponent in this particular case moved into that last category.


Shelby said...

i'm betting he has ties to mississippi lawyers.


Jean-Luc Picard said...

I'm glad I'm not in law.

Dave said...

Shelby, I've got a dollar says the tie is to Louisiana.

Curmudgeon, you're so very close to Lake Wobegon, don't tell me members of the bar act that way, that way.

From what you said, and my one experience with a Chicago U.S. District Court Judge, I'm thinking you'll be OK. Federal judges don't like pedestrian civil cases, they don't like discovery disputes and they especially don't like lawyers that mess with the process.

And, like me, you are doomed to forever toil given your disposition to try to save your client litigation expenses by getting to the matter of liability before spending lucrative hours on damages discovery.