Discovery Abuse in the Litigation Process
Limiting the potential for abuse and delay
Discovery can reduce the costs of litigation, but it can also be used to harass and delay. There are a number of things that counsel and a forensic professional can do to limit the misuse of the discovery process, save costs, and lead to a settlement.
There is an excellent article in the forthcoming Julyâ€’December 2014 issue of the Journal of Forensic & Investigative Accounting about discovery abuse in litigation. The authors, William Hopwood, Carl Pacini, and George Young explain that the discovery process is used by litigants to gather information from opposing parties to enable them to know before the trial begins what evidence might be presented (for example, deposition, interrogatories, and request for production of documents). Earlier research by J. Y. Kim and K. Ryu suggests that this discovery process reduces surprise, lowers translation costs, increases the percentage of settled disputes, improves the accuracy of trials, and filters out frivolous disputes.
These three professors argue that this discovery process has been transformed into a tactical weapon by many lawyers. Discovery abuse occurs in two major ways. First, lawyers use discovery devices to harass, cause delay, or wear down an adversary by increasing litigation costs.1 Second, lawyers stonewall or oppose otherwise proper discovery requests in order to frustrate the other party.2 The authors believe that forensic accountants can work with lawyers to help reduce the harmful effects of attempts to abuse the discovery process.
So what can lawyers, forensic accountants, and judges do to enforce compliance with discovery rules? The three professors provide a number of suggestions, such as using a collaborative or team approach. The forensic accountant should meet with his or her attorney, establish discovery objectives, and obtain all necessary documents. Collect as much information about the opposing attorney and review some trial court files of several cases of the opposing counsel.
Lawyers and forensic accountants should monitor deadlines and ask for extensions only when necessary. Require the opposing side to provide a â€śprivilege log,â€ť which documents the opposing litigantâ€™s refusal to produce. Obtain protective orders that set limits on the lengths of depositions and establish payment obligations and other conditions of violations.3 Finally, seek sanctions for predatory discovery, and above all, document discovery abuse when encountered.
This short piece has not covered many of the excellent suggestions from this article. You can find the complete electronic article here.
Larry Crumbley is editor of the Journal of Forensic & Investigative Accounting. He is the KPMG Endowed Professor at Louisiana State University and co-author of the textbook Forensic & Investigative Accounting, published by Commerce Clearing House. He can be contacted at firstname.lastname@example.org.
1F. Easterwood, â€śDiscovery Abuse,â€ť Boston University Law Review, 69 (1989): 635-648.
2F. H. Hare, J. Gilbert, and S. Ollanik, Full Disclosure: Combating Stonewalling and Discovery Abuse, 2nd edition. (Washington, DC: ATLA Press, 1995)
3R. Jenner, â€śHow to Attack Discovery Abuse,â€ť Trial, 38, no.2 (2002):28-33.