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How to Deal With Discovery Bullies

By William Vogeler, Esq. on July 27, 2018 7:00 AM

Remember when you were a kid, and your dad taught you to stand up to bullies?

What happened? You got punched in the nose, right? So that's when you introduced the abuser to your big brother.

Maybe that's not your story, but you're grown up now and it's time to deal with the discovery bullies. It's best to avoid the conflict, but sometimes you have to push back.

Discovery Sanctions

If you get knocked around by abusive litigators, introduce them to your big brother or sister on the court. Judge Nancy Koppe, for example, got fed up with it recently.

"The court has indulged the parties' abusive litigation tactics for long enough," she said. (If you've heard that before, you know what she's talking about.)

The parties had filed eight motions in a "briefing odyssey," she said, including a "frivolous motion" to strike an errata practically the same day.

When opposing counsel litter the court with needless paper, or endless e-discovery disputes, its' a good time to call them out. Ask the court to sanction them for hiding documents and failing to preserve evidence, too.

Beyond Punitive

Of course, it's best to refrain from fights and excessive litigation. Not to mention anyone in particular, but sometimes judges can be bullies, too.

The U.S. Supreme Court reversed a $2.7 million discovery sanction last year, explaining that the punishment must match the crime. Justice Alana Kagan wrote for the court that trial judges must follow a "but-for causation standard" when determining sanctions.

"The court's fundamental job is to determine whether a given legal fee -- say, for taking a deposition or drafting a motion -- would or would not have been incurred in the absence of the sanctioned conduct," Kagan said.

That would be your big sister talking.

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