Question

Briefly discuss the case study about discovery abuse.

Answer 1

DISCOVERY ABUSE

Conducting discovery for an improper purpose or misusing the discovery process by making irrelevant information requests is known as discovery abuse. Discovery abuse also includes discovery misuse and overuse.

Discovery misuse would include attempting to get information that will violate rules. Eg. harassing someone to give certain answers.

Discovery overuse refers to asking for more information than required in a particular case. Eg. requesting of information that might be relevant but is simply excessive and may not be connected to a particular case.

Over the years litigants used to obtain information from opposing parties through formal process of discovery. It enables the other parties to know about the evidence that may be presented. This process was quite efficient as it minimised the surprises, increased the percentage of settled cases etc.

However, this process of discovery has been transformed into a tactical weapon and evolved into what we term it as "discovery abuse". Discovery can take many forms-

1. excessive or improper use of discovery devices to harass or cause delay which may further increase costs of litigation and lead to general dissatisfaction with justice system.  

2. It includes the obnoxious behaviour by Lawyers. Lawyers may increase the number of hours they bill to clients.

3. Stonewalling or opposing proper discovery requests to opposing parties. Many litigants refuse to comply with court orders or discovery requests.

Since our legal system cannot remover discovery from the process, judges must use the tools at their disposal to enforce compliance with the rules so that it remains consistent with the spirit of discovery.

Interrogatories

It includes inexpensive way of obtaining information. It involves litigants to do more research work and yield information that is related to the specific matter. Despite these advantage Interrogatories are the most abused discovery device.

1. Attorneys ask question and these questions are being given vague replies, objections or little information.

2. The second technique applied by litigant is the outright refusal to answer interrogatories or taking excessive time to answer the question.

3. The third abuse occurs when counsel chooses to craft inadequate responses in order to hide all the relevant information. In such case lawyer will not respond properly and will keep on objecting as often as possible.

4. The repelling party makes no effort to answer the questions asked by interrogatory.

5. Some interrogatories research on technical and statistical data and ask clients to prepare answers on it as it is possible lawyers might not process the relevant information.

Depositions

Depositions are an important discovery that is used to collect information that has not been screened by opposite attorney. It can highlight weaknesses in opponent's case. Deposition have however been used as a predatory discovery practice.

1. Use of vulgar and abusive language and physical threats. Eg. use of word f*ck.

2. Second category of predatory depositons involve instructions not to answer or improper objections.

3. Third type of predatory depositions involve witness coaching, interrupting a witness, or giving private consultation.

4. One last rare case of deposition involves physical violence.

Tactics to fight Predatory Discovery

Numerous tactics can be used for these practices. It includes adopting a collaborative or team approach, making good record, insisting on privilege log, seeking protective orders, appointment of special master, seeking sanctions.

1. Collaborative Team Approach - In this forensic accountant should be able to meet the counsel, establish discovery objects and should be able to obtain documents, and evidences which are in possession of the clients.

2. Making a good record-Attorneys and forensic accountants should properly monitor the deadlines and also make extensions whenever necessary. They should keep spreadsheet of all discovery requests and status of each request made and actions taken.

3. Privilege Log-The log must describe the documents or items that are not produced without revealing the protected information and permitting other parties to ascertain that claim is legitimate.

4. Protective Order-It involves seeking protective order from trial court that sets limits on depositions and also establishes payment conditions and other violations.

5. Seeking Sanctions-Federal Courts have authority to impose sanctions under Federal Rule of Civil Procedure.

Conclusion-

Legal disputes offer ample opportunities to abuse provision of law especially in case of discovery. The best defence is to be aware of the techniques that abusers use to manipulate the system and it is our responsibility to take proactive steps to lower the likelihood of such abuses. It can include many steps such as gathering information about opposing counsel, collecting information of about opposite parties etc. Taking these steps will help us resolve the actions in fair manner.