Verdict - Spring 2014 - (Page 26)

professional practice pointers Confronting Discovery Abuse BY DAVID BILLS U nprofessional conduct in the discovery process, to include intentional tactics of delay, obstruction and outright misrepresentation, is a pervasive problem in civil litigation. As trial lawyers, because we are frequently forced to deal with such tactics, effective approaches to confront and overcome discovery abuse are needed. To place the problem into a proper context, all lawyers - first and foremost - are officers of the Court and are charged with special responsibilities to uphold the legal process and improve the administration of justice. See e.g., OCGA § 15-19-4. And although intended to be an adversarial system, the judicial process is not a free-for-all and lawyers are not hired guns who can deploy win-at-all-costs tactics with impunity. On the other hand, all parties are entitled to counsel diligently pursuing their interests and lawful objectives. As such, the precise line of demarcation between right and wrong is frequently more difficult to pinpoint than is initially realized. Certain conduct is, however, unequivocally wrong. For example, the truth is always non-negotiable. Thus, under Professional Rules 3.3 and 3.4, lawyers are specifically prohibited from the following acts of misconduct: making false statements of material fact or law to a tribunal; failing to disclose material facts to a tribunal when disclosure is necessary to avoid assisting criminal or fraudulent acts by clients; presenting evidence known to be false; obstructing another party's access to evidence or unlawfully concealing documents or other materials having potential evidentiary value; falsifying evidence; and counseling or assisting witnesses to testify falsely. Under Rule 1.2 (e), lawyers are specifically required to decline to assist clients in criminal or fraudulent conduct and to consult with clients as to limitations upon the lawyer's conduct. Similarly, numerous statutes and court rules constrain lawyers from misconduct during litigation and authorize trial judges to impose meaningful penalties upon both lawyers and their clients. See e.g., OCGA §§ 9-11-1 (Civil Practice Act is be construed to secure 26 Georgia Trial Lawyers Association the just, speedy, and inexpensive determination of every action); 9-11-11 (a) (signature of an attorney on a pleading constitutes a certificate that it is not interposed for delay); 9-11-37 (motions to compel discovery; sanctions for failure to comply, including striking of pleadings and contempt); 9-15-14 (attorney's fees and expenses of litigation awardable for abusive litigation); USCR 5.1 (discovery to be completed without unnecessary delay); USCR 6.4 (B) (good faith efforts to resolve discovery disputes). Therefore, trial court judges have ample tools to effectively address discovery abuse. The reality, however, is that some judges are much more willing than others to actually engage, which in turn means we must strongly emphasize policy considerations such as the critical importance of pretrial discovery and the need for enforcement of the rules to maintain a level playing field and deter flagrant misconduct. Given the multitude of contexts in which discovery abuse occurs, the questions of exactly when and how to attempt to engage judges are not subject to broadly applicable answers. A few helpful suggestions can, however, be made. For one thing, as soon as a discovery problem arises, trial lawyers should take immediate steps to constructively address it. Initial efforts should include informally contacting opposing counsel by telephone or email and calmly and respectfully expressing relevant concerns, and requesting a face-to-face conference to more specifically discuss the issues and hopefully reach satisfactory resolutions. Because such steps - if properly executed in a true good faith manner and with a very high degree of civility and professionalism - will often result in the situation being substantially or completely resolved, a more formal approach, to include preparing a letter pursuant to Rule 6.4, should almost always be deferred until it becomes undeniably clear that the filing of a motion will be necessary. Likewise, as a general rule, the filing of pleadings that aggressively attack other lawyers is seldom the basis of a winning strategy. Instead, such pleadings give rise to assumptions that the offending lawyer's misconduct was somehow justified by or more or less equivalent to how the moving lawyer had acted. Taking the highest road possible is obviously the better approach. Finally, because it is predictable that some judges will not be receptive to a given motion or will be disinclined to referee what will be perceived as a routine lawyer squabble, it is wise to always carefully weigh the relative risks and benefits of bringing any specific discovery dispute before the Court. ●

Table of Contents for the Digital Edition of Verdict - Spring 2014

President’s Message
What’s New at HQ
From Celebration to Coma the Story of Gangs, Violence, and a $35 Million Verdict
2014 Legislative Report
Who Is Driving the Van? a Look at Non-Emergency Medical Transport Accidents
Professional Practice Pointers
Civil Justice Pac Legislative Reception in Photos
Dram Shop Litigation: Think Twice Before Pouring That Next Drink
The Fiery and Predictable Consequences of Rear-Mounted Fuel Tanks
Notes: What’s New With GTLA Members
Book Review
GTLA Out & About in Photos
Case Updates: What’s New?
Workers’ Comp: Recent Developments
Welcome New GTLA Members!
Champion Members
Index to Advertisers/

Verdict - Spring 2014