PROPORTIONATE PENALTY FOR BREACH OF DISCLOSURE OBLIGATIONS: THE AMERICAN APPROACH: MAKE A VIDEO

One of the comments in Denton was that a “strict” construction of Mitchell led to disproportionate results.  A judgment reported this week in Above the Law provides an example of how a judge can attempt to remedy continuous defaults.

THE ISSUE: OVERZEALOUS “LITIGATION INDUSTRY”

Judge Mark Bennett was disgruntled with the approach of  litigators to disclosure. There are shades here of the Jackson Report.

“Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught…. Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding”.

THE SOLUTION: GET THE DEFAULTING PARTY TO MAKE A VIDEO EXPLAINING THE RULES OF DISCLOSURE

“Counsel must write and produce a training video in which Counsel, or another partner in Counsel’s firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified “form” objections, witness coaching, and excessive interruptions. The lawyer appearing in the video may mention the few jurisdictions that actually require only unspecified “form” objections and may suggest that such objections are proper in only those jurisdictions. The lawyer in the video must state that the video is being produced and distributed pursuant to a federal court’s sanction order regarding a partner in the firm, but the lawyer need not state the name of the partner, the case the sanctions arose under, or the court issuing this order. Upon completing the video, Counsel must file it with this court, under seal, for my review and approval…. Counsel need not make the video publicly available to anyone outside Counsel’s firm.”

WELL IT CERTAINLY GETS THE POINT HOME

I should point out that “Counsel” in that context refers to the lawyers in the large firm that had the aggressive approach to disclosure issues.

COULD IT HAPPEN HERE?

Well CPR 3.1(3) states:

“When the court makes an order, it may-

(a) make it subject to conditions…”

A training video is less draconian than striking out… Expect a boon in film production soon.