Much of what happens in a lawsuit is gamesmanship, especially during the discovery phase. Discovery comprises much of the pre-trial phase of litigation where each party seeks to understand what the other side(s) know, what documents they have pertaining to the litigation, what they will say under oath, etc. Discovery can be expensive. A Rand Corporation study found that 80% of litigation costs are incurred in the discovery phase. Since less than 2% of cases filed actually go to trial, discovery ends up being THE cost of litigation for the vast majority of cases. As a result, gamesmanship during discovery can be used as strategic or tactical tool — or abused — depending on how one views it. Some examples:
- Asking for voluminous or tangentially relevant documents
- Taking depositions from an excessive number of people
- Repeated last minute canceling of depositions
- Asking inappropriate questions in an interrogatory
- Refusing to provide requested documents
- Refusing to answer interrogatories
- Filing a lot of motions with the court (motions to dismiss, for summary judgment, to compel, etc.)
The goal of the gamesmanship is to create addition expense or agita for the other side, causing them to want to abandon their case or to settle on more favorable terms. Unfortunately, the usual result is a lose-lose scenario where it creates the same problems for both sides.
In a recent case in California, the court in Clement v. Alegre , 09 C.D.O.S. 12126 imposed a monetary sanction of more than $6600 on one side for abusing the discovery process. In this case, the plaintiff had objected to answering 20 of 23 interrogatories. A retired judge acting as discovery referee noted that plaintiff’s objections were “unreasonable, evasive, lacking in legal merit and without justification” and he imposed the monetary sanctions. Justice J. Anthony Kline for a unanimous appeals panel wrote in salient parts:
We have no difficulty in affirming the trial court’s determination that in this case plaintiffs forced to court a dispute that was not ‘genuine’.
Indeed the record here strongly indicates that the purpose of plaintiffs’ objections was to delay discovery, to require defendants to incur potentially significant costs in redrafting interrogatories that were clear and that did not exceed numerical limits, and to generally obstruct the self-executing process of discovery.
Ample evidence supports the referee’s determination that plaintiffs deliberately misconstrued the question.
Clearly this was ‘game-playing’ and supports the referee’s findings and the sanctions award.
Kline further chastised both sides for failing to mount any “serious effort at negotiation and informal resolution” and used the ruling to remind all lawyers to avoid a similar outcome.
Mediation can help avoid all of these discovery problems. Discovery is a means to an end — not the end. The end is resolving your dispute. Mediation helps get resolutions on your terms. Mediation seeks to find win-win solutions. If you’re looking for a resolution to your dispute, call me at 732-963-2299 or contact me online.