Taking Aim at Discovery Abuse

Posted on Tuesday, October 22nd, 2013 at 1:00 am    

A recent Superior Court opinion strikes a blow at the widespread tactic, especially among defendants, of submitting routine blanket objections to discovery requests.  Associate Justice Edward McDonough issued the ruling in O’Brien v. American Medical Response of Massachusetts, Inc., sharply criticizing the practice, and indicating his intent to impose monetary sanctions on the defendant.

The defendant in O’Brien had responded to requests for its driver’s personnel file and investigative reports with the vague statement that, “We are not authorized to provide any further documents in response to your letter.”  No privilege log was produced, nor were the withheld documents identified or itemized in any way.

The court found that the defendant’s attempt to withhold these documents was completely unjustified, noting that although some of the information might be inadmissible at trial as relating to subsequent remedial measures, the question of admissibility was not determinative of the existence of a privilege.  The court noted that the defendant could not “(a) withhold documents, (b) arrogate to itself the role of sole arbiter of the document’s admissibility, and (c) then use its own self-serving inadmissibility ruling as an excuse or pretext to continue to withhold the documents as irrelevant.”  Rather harsh language that sounds almost as if it was drawn form the plaintiff’s motion papers!

The judge was likewise critical of the defendant’s attempt to withhold the cellphone number of its ambulance driver—under the guise of protecting the driver’s “privacy”—observing that this information is obviously discoverable in a case involving a commercial driver.  The court noted that the defendant had refused to produce the telephone number until after the plaintiff had prepared and filed a motion to compel.

Judge McDonough’s language should be quoted early and often by plaintiffs facing discovery obstruction:  “Obviously, surrendering discoverable documents—or revealing their existence for the first time—only when confronted with a motion to compel—is hardly [the] proper way to conduct discovery.  Discovery is not a game of “hide the ball” until your opponent is forced to take you to task on inappropriate and baseless objections.”

More opinions like this would go a long way toward simplifying the discovery process and reducing wasted effort.  Most defendants have no incentive whatsoever to provide full responses to discovery requests; they often gain a tactical advantage by concealing information that would be harmful to the defense.  Even the process of motions to compel favors defense counsel, who derive a financial benefit from opposing such motions and providing further responses, all at their regular hourly rate.  Plaintiff’s counsel, on the other hand, who is generally working on a contingent fee basis, normally receives no compensation for the extra work required to obtain what should be provided automatically.  A few heavy sanctions imposed on recalcitrant defense counsel would remove the financial incentive and reduce the practice of routine obstruction.

Although not germane to the central issues of discovery obfuscation, the Court’s ruling also addresses the scope of discovery when an expert intends to rely on a computer simulation.  In response to the defendant’s refusal to produce the actual simulation, the Court noted that fair disclosure was required to enable the plaintiff to assess the validity of the simulation, and included the actual simulation itself, as well as the name of the program used to create it, and all documents which were used to supply input data, including otherwise privileged medical records.

Read Judge McDonough’s opinion in O’Brien v. American Medical Response here.