Compliance with discovery orders
It seems that my blog was found by someone with the following question: If there is a Court order to produce documents by a certain date and you fail to do so what happens to you? Well, one thing I learned during my time in big law and in law school was that the answer to almost any legal question is usually, “It depends.” This one is no different.
Before I get into the substance, I have to be clear that I would never suggest that anyone attempt to tackle the discovery phase alone. Discovery is where cases can really be won and lost. If you know where to look and who/how to ask for what you need, you can find critical information or documentation that could help you win or give you (or the other side) a damn good reason to settle. Always consult with an attorney or, if income is an issue, contact a legal aid center for help navigating through your situation.
Now. Where were we? Oh.
The answer depends on several things, including the responding party’s role in the litigation, what form the discovery request is in, what phase of litigation the case is in, and what attempts have previously been made to comply (there are a few ways to do this). I can by no means address them all in one post and still keep your attention. The bottom line in any case, however, is that you should respond somehow. Here are a few things to keep in mind.
You may be able to object to the discovery. Of course, there needs to be a reasonable basis to object, but this is one way to suspend your obligation to respond. Objections might be that the documents requested are privileged, irrelevant (which is a more complex concept than it might seem), the request seeks trade secret or other confidential information, to name a few. You may need to send a letter, give the other side a chance to limit or revise their requests, etc. Disputing discovery is a process all unto its own.
If you’re not concerned about privilege or other reasons to withhold the documents, but are having difficulty locating documents in storage, or there’s a medical emergency, or some other reasonable interference in your ability to timely respond to the request, you should ask for an extension. Attorneys are going to afford you the courtesy if you have a good reason (because discovery rules typically require it).
Taking immediate action when you have been served with a discovery request, especially if you are a party in the case, is extremely important. A typical consequence of failing to timely respond is the waiver of any objections to the discovery request. While this may not be the end of your case, it can definitely muck things up. It’s also so easy to avoid.
Another particularly disastrous consequence of ignoring discovery requests: if you fail to timely respond to Requests for Admission, your failure to respond could be deemed an admission of whatever fact you had an opportunity to deny. The plaintiff probably asked you something like “Admit that you plaintiff performed the work required under the contract.” “Admit that you did not pay plaintiff $100,000 for the work performed under the contract.” and on and on. I’m sure you can see why no longer being able to deny these facts could ruin your defense.
I really can’t stress enough how important it is that discovery requests are addressed well in advance of when the response is due.
But so far, I have been assuming that you were just served the discovery request and are trying to figure out how to proceed.
If you have an Order from the Court that is signed by a Judge, we’re in a different area. Note that discovery requests and orders alike may come on an attorney’s pleading paper, but an Order from the Court will have a Judge’s, Magistrate’s, or perhaps the Court Clerk’s signature somewhere on it – not just a lawyer and his assistant.
Outright ignoring a discovery order can be fatal to your case. Before I scare you off, discovery orders may be as simple as the Order that sets the end date for the case’s discovery period, when certain motions should be filed, etc. These kinds of orders are ministerial and can usually be modified. However, orders issued in response to blatant failures to respond to discovery requests are, not surprisingly, somewhat different (understatement of the year). If the Court has issued an order compelling you to produce the documents, you should comply (duh). Otherwise, the Court might strike your answer, enter a default against you, then judgment, force you to pay the other side’s attorneys’ fees, or hold you in contempt.
While these consequences may seem harsh, they really underscore how significant discovery is in a case. They are are also usually well deserved by the time they are doled out by a Court. Again, the opposing side is typically going to have tried to give you chances to comply before getting the Court involved. The Court may also have given you additional opportunities to respond before granting this kind of relief.
From a client’s perspective, discovery is the worst part about litigation. It really can be a long and painful process; but it’s often critical. That’s where lawyers come in. Of course, if the attorney is the pain in the process, it does not hurt to reconsider who you have working for you. If you get a bad hair cut, do you go back to that hair stylist? Of course not.