Stupidity is Not an Excuse for Discovery Abuse

Many, if not most, lawyers play cutesie when responding to discovery requests, and will readily resort to tortured readings and ridiculous wordplay semantics to avoid turning over harmful (or even not so harmful) material. This is, in my view, shameful and one of the more disgraceful elements of litigation practice. This story, however, about the efforts of plaintiffs’ counsel in a case against Microsoft to avoid turning over the Microsoft documents reviewed by the plaintiffs’ economic experts, is beyond shameful. (Hat tip to Howard Bashman, via Beldar, for the story). Read more below the fold.

Microsoft claims to have asked for documents that were “reviewed” by the plaintiffs’ experts so that they (Microsoft’s counsel) could prepare for the experts anticipated depositon testimony. The plaintiffs’ counsel reportedly read the request as seeking documents that were “re-viewed” by the experts, thus obligating them to produce only documents that the experts had looked at more than once. If this account is correct, and if the Microsoft lawyer has properly characterized the response offered by plaintiffs’ counsel, the response staryes well beyond typical, but regrettable, litigation nonsense. It is beyond stupid. It is pure mendacity, and exhibits such complete contempt for the court and for the litigation process that Microsoft’s requested sanction – the exclusion of the 3 experts – should be granted and, indeed, is not strong enough, in my opinion. Deliberately reading a common English word “review” that has a plain and commonly understood meaning ion the litigation context in such a silly, dishonest fashion brings disrepute not only on the plaintiffs’ counsel (which is well deserved), but upon the legal system as a whole,as well as those of us who practice trial law. The court should impose the strongest possible sanction, and report these lawyers to the appropriate authorities for possible disciplinary action.