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Mastery of the Discovery Rules Can Help Avoid Discovery Battles
More often than not, written discovery responses elicit a variety of objections rather than substantive information responsive to the discovery request. The most common objections are asserted on the grounds of irrelevance, excessive scope, and vagueness. Too often, the objecting party mistakenly believes that he or she is excused from providing a substantive response simply because an objection has been asserted.
This mistake, all too common in litigation, can bring dire consequences. A mastery of the discovery rules and the applicable case law can help you outmaneuver stonewalling tactics and protect yourself and your client from the exorbitant costs of discovery battles, as well as court-imposed sanctions.
Discovery rules are broad and liberally construed to facilitate the discovery process, which in turn is intended to expedite the litigation process. Home Indem. Co. v. Basiliko, 245 Md. 412, 226 A.2d 258 (1967); Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 174, A.2d 768 (1961). Maryland Rule 2-402(a) permits the discovery of “any matter that is not privileged … if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” (emphasis added). Although relevance is not defined under the discovery rules, the term “relevant” is defined by the rules of evidence (Md. Rule 5-104) as “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” By comparing the use of the term “relevant” in both contexts, it is evident that relevance for discovery purposes is broader than the term “relevance” for evidentiary purposes. United Oil Co., Inc. v. Parts Assocs., Inc., 227 F.R.D. 404, 409 (D. Md. 2005); Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 198 (N.D. W. Va. 2000). The discovery standard is a very broad one that requires some nexus between the information sought and a claim or defense. Yet all too often, relevance is misused as a “catchall” objection in written discovery.
These types of catchall objections inhibit the discovery process and render it meaningless if little information is exchanged by the litigants. By wasting time and resources on discovery disputes, both parties are disadvantaged and the litigation remains stagnant. For instance, if the propounding party chooses to expend resources on filing a motion to compel, after making a good faith effort to resolve the discovery dispute, the objecting party then faces the cost of opposing that motion. Either way, both parties incur additional litigation costs in fighting this battle, which can be a zero sum game.
Talk to Your Opponent
Rather than resorting to court intervention when dealing with this type of dispute, the propounding party’s initial response should be to contact opposing counsel to determine if any information is actually being withheld or whether these objections are just part of the standard practice. Some attorneys believe that it is best practice to assert all viable objections, even though no information responsive to the request is being withheld. In that case, a motion is moot, but it is always best practice to request that opposing counsel verify in a letter or in a formal supplementation of discovery that there is no information responsive to the written discovery request.
A phone call communicating concerns to opposing counsel affords the opportunity for the propounding party to explain the reasons why the objections are improper and why the response should be supplemented. It also demonstrates efforts to cooperate in resolving the matter, and it is an opportunity to work with opposing counsel to redefine the parameters of the discovery request to elicit some form of mutually acceptable response.
Make a Written Request for Supplementation
If reaching out to opposing counsel fails, the next step for the propounding party is to articulate his position in writing – in what is commonly referred to as a “deficiency letter.” A deficiency letter is sent to the objecting party to create a written record of a good faith effort to resolve the discovery dispute and to give the objecting party an opportunity to correct the deficient response. In a deficiency letter, the propounding party will confront the objecting party on the impropriety of the objections and request that deficient responses be supplemented. In some instances, this endeavor also may fail and the objecting party may persist in asserting that the objections are valid grounds for withholding information or valid grounds for refusing to supplement with additional information – prolonging any effort to resolve the dispute.
Court Intervention as a Last Resort
If the propounding party determines that relevant information was withheld and that opposing counsel is uncooperative, one option is to forgo the resolution of the discovery dispute and proceed with depositions, where it is more likely the information can be obtained from the deponent. Otherwise, as a last resort, court intervention may be necessary.
Before filing a motion to compel, the propounding party must consult the applicable rules to determine whether there is a good faith certification requirement. Pursuant to Maryland Rule 2-431, a court need not consider a discovery dispute unless a certificate details the good faith attempts of the moving attorney to resolve the dispute with opposing counsel and certifies that the attorneys are unable to reach an agreement. The certificate must provide information regarding the date, time and circumstances of each discussion or attempted discussion – details that evidence the sincere attempts of counsel to resolve any differences. Local Rule 104.7 of the United States District Court for the District of Maryland, on the other hand, mandates that such good faith efforts be made to resolve a discovery dispute and that such certification accompany any discovery motion.
The Objecting Party
Fight the Fight or Get a Protective Order
On the other side of the table, the objecting party should consider whether it is worthwhile to fight this battle or just turn over the information. Be aware that in a discovery dispute it is the objecting party who bears the burden of demonstrating why the information sought is irrelevant, while at trial it is the party offering the evidence who bears the burden of demonstrating why it is relevant to the proceeding. United Oil Co., 227 F.R.D. at 409. If a legitimate objection is asserted, the objecting party may wish to set the parameters of the discovery with fellow counsel, otherwise he may file a motion for protective order.
Where a baseless objection on the grounds of relevance is asserted and the interrogatory obviated, the objecting party should be aware that courts have broad discretion in ordering a remedy for the failure to abide by the discovery rules, and appellate courts are reluctant to overturn these decisions unless there is an abuse of discretion. See, Logan v. LSP Mktg. Corp, 196 Md. App. 684, 11 A.3d 355 (2010).
Factors considered by the court in imposing sanctions include “(1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; and (5) whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.” Heineman v. Bright, 124 Md. App. 1, 720 A.2d 1182, 1185 (1998) (quoting Taliaferro v. State, 295 Md. 376, 390-91, 456 A.2d 29 (1983)).
One form of sanction authorized in Maryland is the award of attorneys’ fees and expenses in response to a motion to compel filed by the propounding party. Humphreys Exterminating Co., Inc. v. Poulter, 62 F.R.D. 392 (D. Md. 1974). Harsher sanctions, such as the exclusion of evidence or the drawing of an adverse inference, may be imposed in cases where there has been a failure to disclose information in discovery, which could ultimately lead to the disposition of the case. Heineman, 124 Md. App. at 7, 720 A.2d at 1185 (excluding witnesses who were not disclosed in discovery, depriving the offending party of relevant witnesses, which in turn warranted summary judgment); Grievance Comm’n v. James, 385 Md. 637, 870 A.2d 229 (2005) (precluding the offending party from asserting as a defense the information that was untimely and where the discovery response were unresponsive). Harsh sanctions such as the dismissal of a case or exclusion of evidence is generally reserved for cases in which the discovery violation was persistent and deliberate and caused prejudice to the court or the propounding party. Admiral Mortgage v. Calvin Cooper, 357 Md. 533, 745 A.2d 1026 (2000).
Sanctions are appropriate in cases where counsel’s efforts in responding to discovery are dilatory, unless there is good cause. The following reasons have been found to be unreasonable excuses for delays in responding to discovery: unsupported and vague claim of “personal problems;” support staff leaving and failing to file answers; and financial trouble paying expert witness fees. See Hossainkail v. Geberhiwot, 143 Md. App. 716, 795 A.2d 816 (2002); Warehime v. Dell, 124 Md. App. 31, 720 A.2d 1196 (1998);Helman v. Mendelson, 138 Md. App. 29, 769 A.2d 1025 (2001).
Particularize or Waive
It is also vital to be aware that the court may deem an objection waived if it is not properly made. When objecting on grounds of overly burdensome, overly broad, and excessively expensive and prejudicial, the party asserting the objection must allege specific facts to support the objection. Tucker v. Ohtsu Tire & Rubber Co., Ltd., 191 F.R.D. 495, 498 (D. Md. 2000); Fed. R. Civ. P. 33(b)(4) (requiring the objection to be stated with specificity, otherwise the objection is waived); see also, Jayne H. Lee, Inc. v. Flagstaff Indus., 173 F.R.D. 651, 655 (D. Md. 1997). A failure to particularize the objection suggests that the answering party did not conduct a reasonable inquiry to respond to the discovery request, as required by the discovery rules. Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008). Accordingly, a general conclusory assertion of an objection is not sufficient to preserve the objection and the failure to particularize may be deemed a waiver that would justify a court ordering the production of this information regardless of the cost or burden. Id.
For guidance on interpreting the discovery rules, attorneys should refer to the federal discovery rules. To the extent that the Maryland discovery rules are patterned after the federal discovery rules, the Maryland Court of Appeals refers to the federal discovery rules for guidance.Snowhite v. State ex rel. Tennant, 243 Md. 291, 221 A.2d 342 (1966). There is additional guidance in the Discovery Guidelines of the Maryland State Bar Association, which precedes the discovery rules found in Chapter 400 of the Maryland Rules. As the nomenclature suggests, these guidelines are intended as recommendations, as they have not been formally adopted by the Court of Appeals.
The bottom line is that both parties must weigh the benefits and costs involved in engaging in these battles and should always make efforts to work with opposing counsel in resolving the dispute before taking further action. Both parties must remain focused on their discovery goals and continuously evaluate how their actions will advance their respective positions. Both parties should refer to the discovery rules and guidelines to make sure that their actions are in compliance with the Rules, ensuring that they are not exposed to potential court sanctions.
This article was previously published in the DRI newsletter, The Business Suit: The Newsletter of the Commercial Litigation Committee. Maryan Alexander is an Associate with Wilson Elser’s Baltimore office. She can be reached at (410) 962-7385 or email@example.com.