By Brendan Faulkner, Esq. and Mike A. D’Amico, Esq
Courts have the authority to curb discovery abuse. Lawyers have ethical obligations not to engage in discovery abuse. The right of a litigant to discovery is primarily the right to obtain information. Yet despite all of this, discovery abuse in civil litigation remains common. This undermines the integrity of the judicial process, and prevents trials from being what they are intended to be: a search for the truth.
Discovery abuse takes a variety of forms including evasive discovery responses, boilerplate objections to written discovery, speaking objections during depositions, the failure to produce responsive documents, and even making misrepresentations. Such conduct is directly contrary to the very purpose of discovery: to ensure that lawsuits are decided by what the facts reveal, not by what facts are concealed.
Because discovery is a search for the truth, the rules of discovery are designed to serve the ends of justice by facilitating an intensive search by providing procedural mechanisms designed to make a trial a fair contest with the basic issues and facts disclosed to the fullest practicable extent. “Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice.” Haeger v. Goodyear Tire and Rubber Co., No. CV-05-02046-RHX-ROS (D. Ct. Ariz., Nov. 8, 2012) (Silver, J.), p. 1.
Courts and lawyers have the authority and tools to prevent discovery abuse. Courts have the discretion to issue sanctions including orders of default, establishing facts for the purpose of the pending case, costs and attorney’s fees.
Two recent decisions in product liability cases in federal court illustrate what courts can do to curb discovery abuse, the Haeger v. Goodyear case cited above and Bates v. Michelin North America, 1:09-cv-03280-AT, Document 269 (N.D. Ga.) (Jan. 13, 2012) (Totenberg, J.).
In Haeger, there had been a tire failure, which was alleged to have caused a motor vehicle accident. The tire was intended for pickup trucks but was being used on RVs. Goodyear conducted tests that revealed that there would be tire failures at certain temperatures and at certain weights. Even though the results of Goodyear’s testing on the tire had been requested by the plaintiffs’ counsel in written discovery multiple times, local counsel, national coordinating counsel and Goodyear did not provide this particular test.
Upon reviewing Goodyear’s discovery responses, plaintiffs’ counsel did not believe that the company was in compliance with its discovery obligations. Several hearings took place regarding Goodyear’s responses. On multiple occasions in front of the court, local and national counsel represented that all the testing that had been requested had been provided to the plaintiff. After the case was settled, the plaintiff’s lawyer became aware that the testing he sought had been disclosed by Goodyear in a trial involving the same type of tire in Florida. These tests results were harmful to Goodyear’s position. The lawyer then brought an action for sanctions against Goodyear’s local counsel, national counsel and in-house counsel.
The Haeger court concluded that Goodyear’s national coordinating counsel “. . . deliberately withheld these responsive documents in the best interest of Goodyear.” In addition, the court found that local counsel and national coordinating counsel’s testimony, at the hearing for sanctions, conflicted with the documentary evidence and was not credible. The court noted that national counsel and Goodyear “. . . engaged in repeated deliberate attempts to frustrate the resolution of this case on the merits” and that Goodyear and its attorneys “. . . adopted a plan of making discovery as difficult as possible, providing only those documents they wished to provide, timing the production of the small subset of documents they were willing to turnover such that it was inordinately difficult for plaintiffs to manage their case, making false statements to the court in an attempt to hide their behavior.” The Haeger court noted that “the little voice in every attorney’s conscience that murmurs turn over all material information was ignored.” It held that the actions of the lawyers were in bad faith and that the national counsel and Goodyear would therefore be jointly responsible for 80% of plaintiff’s counsel’s legal fees, and that its local counsel was responsible for paying the remaining 20% of the fees. On August 26, 2013, the court entered judgment against the lawyers and Goodyear in the amount of $2,741,201.16.
Similarly, in the Bates case, in January 2012, a federal judge in Atlanta ordered Michelin to pay attorneys’ fees and found that the tire that was the subject of that case was “defective and unreasonably dangerous” in sanctioning the tire-maker for nearly two years of discovery abuse. In defaulting Michelin as to the issue of the product’s defectiveness, the Court noted that a prior sanction order in the amount of $17,000 was evidently not sufficient deterrence.
In that case, Michelin was sued for negligence and product liability for a tire-related rollover crash that rendered the driver a quadriplegic, with permanent spinal and brain injuries. The crash happened when the left rear tire of the driver’s GMC Jimmy suffered a tread separation, causing a loss of control and a rollover. The driver was wearing his seatbelt at the time of the crash.
The federal district court judge concluded that Michelin’s “national discovery counsel” had engaged “in a pattern of subterfuge” by withholding relevant documents, that Michelin had made multiple “inaccurate or false representations” to plaintiffs’ counsel and the court, and that Michelin had “acted willfully” in repeatedly violating court orders. Although the plaintiff’s attorneys requested numerous documents and data relating to Michelin’s tire safety testing, the number of tires being returned for manufacturing defects, etc., Michelin deliberately held up the discovery process, first by claiming confidentiality issues were involved, and then by producing a series of meaningless documents that did not contain any of the requested data. Michelin improperly deprived the plaintiffs of numerical codes and other data critical to analyzing customer returns of faulty tires. Plaintiffs presented evidence to the Court that Michelin failed to produce all of this data on three separate occasions, and that the company’s responses to its request for warranty data were intentionally obscure.
The Bates court found that the company’s bad faith conduct caused serious prejudice to the integrity of the legal process, and to the plaintiffs’ orderly, effective development and proof of their case. “Michelin’s course of conduct described herein warrants the imposition of sanctions to remedy the impact of repeated violations of the Court’s Orders, inaccurate or false representations to the Court, and prolonged abusive discovery conduct,” the court wrote, and decided that issue preclusion as to the subject tire’s defective and unreasonably dangerous condition was authorized as an appropriately tailored sanction remedy. Bates v. Michelin, at p. 59, citing Ins. Corp. of Ireland v. Compagnie Des Bauxites, 456 U.S. 694, 707 (1982).
It is not a coincidence that Haeger and Bates both involved product liability defendants in federal court. Product liability defendants, who often have vast resources and are represented by “national counsel” working together with local counsel, seem to be among the worst offenders in terms of discovery abuse.
Pursuant to 13-14 of the Connecticut Practice Book, trial courts in Connecticut have the type of authority exercised by the federal district courts in Haeger and Bates. Section 13-14 authorizes a wide array of sanctions for failing to comply with discovery including entry of default, an award of costs, including a reasonable attorney fee, an order that the matters regarding which the discovery was sought, or other facts, shall be taken to be established for purposes of the action; and an order precluding the party who failed to comply with the discovery requests from introducing certain matters into evidence. See Northeast Savings, F.A. v. Plymouth Commons Realty Corp., 229 Conn. 634, 638 (1994) (“the trial court has broad discretion to fashion and impose sanctions for failure to comply with the rules of discovery ….”); Miller v. 26 City a/Los Angeles, 661 F.3d 1024, 1029 (9th Cir. 2011) (it is “permissible to infer bad faith from [a party’s] action[s] plus the surrounding circumstances.”)
The Connecticut Supreme Court has observed that, in addition to the Court’s authority to order appropriate sanctions, rule 3.4 of the Rules of Professional Conduct provides that a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party. See Duart v. Dept. of Correction, 303 Conn. 479 (2012); see also Nix v. Whiteside, 475 U.S. 157, 166 (1986) (lawyer’s “duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth”). An attorney who violates the Rules of Professional conduct is subject to discipline.
Together the rules of civil procedure in both state and federal court, along with the Rules of Professional Conduct serve to secure fairness in the trial process by deterring deliberate discovery misconduct and by providing a remedy if misconduct nevertheless occurs. This is only true however, if trial court judges exercise their authority in response to discovery violations. Failing this, there is a lack of accountability which only serves to encourage further discovery abuse.