Failing To Effectively Participate In Pretrial Discovery Can Lose Your Case, Regardless Of Its Merits. In civil litigation, there are detailed rules which allow both sides to make extensive inquiry of the other side’s information, documents, and knowledge of the case. This can be done through written questions (“interrogatories”), requests for documents (“requests for production”), and questioning, taken before a reporter who transcribes the questions and answers, under oath (“depositions”). In many cases, especially in commercial and business litigation, the inquiries can seem overwhelming and take a vast amount of a client’s resources to truthfully, fully respond. Clients often resist this perceived offensive and costly intrusion into their knowledge and data bank. However, it is required, and courts will strictly enforce a party’s right to have this information. The Arkansas Supreme Court case of Ross Systems vs. AERT, decided in November 2011 (2011 Ark.473),determined that the defendant in business litigation had “thumbed its nose” at the court, flagrantly violating discovery rules, and as a result, the formal answer that it had filed in court was stricken, leaving it in default, and being denied the opportunity to contest the significant claims for damages that had been alleged against it for deceit, deceptive trade practices and breach of contract– regardless of what merit those defenses may have had.
Actually, the discovery rules give a party several bites at the apple before serious sanctions are imposed, but this case illustrates that it is not a matter to be taken lightly. In this case, the plaintiff was required to spend a fair amount of time and money giving the defendant ample opportunity to make discovery responses. The first responses were deemed evasive and incomplete, and as required by the discovery rules, the plaintiff’s lawyer attempted to resolve the discovery issue through a letter. However, the defendant did not respond to that. Subsequently, the plaintiff filed a motion to compel responses to the discovery, again, a procedure contemplated by the discovery rules. A hearing resulted, in which the court directed that supplemental responses be filed within 21 days. Though responses were filed, it was alleged they provided little additional information.
At this point, the plaintiff filed a motion for sanctions (again, as permitted by the rules) for failure to comply with the court’s order. Though some additional material was provided the day before the hearing on that motion, the court found that even though a significant number of documents had been provided, the response was incomplete. The fact that they were not in the defendant’s possession was of no consequence, because the defendant made no effort to determine and specify which documents there were, had taken no steps to provide complete discovery, and was in essence “just thumbing its nose at the court’s order,” which was a flagrant discovery violation. With the defendant’s answer stricken by the court, it was technically in default and had no right to further participate in the proceedings, giving the plaintiff a free shot to make its case without any opposing evidence.
Moral of the story: However bothersome discovery must be, courts take seriously a party’s obligations to participate in good faith in the discovery process.