Hardball Discovery

by Jerold S. Solovy and Robert L. Byman

The deposition has been going on—and on—for three days. all played it ourselves from time to time. But we all make The deponent, wounded by thousands of trivial questions choices. We will be faced throughout our careers with like a bull worked over by a master picador, lapses between whether to play hardball in particular situations and how to rage and weeping frustration. The deponent's lawyer, barely respond when hardball is played against us. conscious, is making intricate designs with a paper clip on Before looking at these questions, two disclaimers: First, his styrofoam cup. this is not the place to explore ethics or the possible use of The young associate who has subjected the witness, his sanctions to attack impermissible conduct. Enough has been lawyer, and the court reporter to this agony is in his glory. written on both. More than enough will be written in the But the senior partner of the young interrogator's firm pulls future. The tactics we are talking about are within—though him out of the conference room and corners him. "What are perhaps stretching the outer limits of—the bounds of ethical you doing?!" the senior partner screams. restraint. "I'm wearing him down, sir. He'll jump at my settlement Second, since we have no expertise in the psychoanalyti­ offer when I tell him I'm about one-third through my exami­ cal sciences, we will not consider lawyers who play hardball nation outline." for the sheer love of the game. Such people cannot help "Are you crazy?" the senior asks. "We don't practice this themselves. They are as unpleasant to waitresses, shopkeep­ way!" ers, household pets, and school-crossing guards as they are "But, sir ..." whines the young associate, "it's working!" during discovery. These congenitally rough lawyers may, The older lawyer is unmoved. "Don't you understand? We from time to time, be effective in spite of themselves. But our don't practice this way. We can't do this. What if somebody aim is to offer guidance to those who can control the way did it to usl" they act. The scene is from the popular, and sometimes accurate, The basic question about hardball tactics is whether they television drama "L.A. Law." In a few minutes, the writers are effective. If they are not, it does not much matter whether have captured one of litigation's most challenging conun­ they are ethical or make us feel good. Scholars can debate drums. The young associate was playing hardball in discov­ ethics, but practical lawyers need not always get that far. If it ery. His tactics were apparently effective. Yet his superior does not work, you should not do it. If it does work, then commanded that they cease. Why did the script call for a consider ethics. halt? Because such tactics violate ethical rules? No. Because In our view, hardball tactics do not work. To see why, they violate court rules? No. Because they violate rules of imagine a baseball game—hardball, of course—between logic? No. Such tactics are frowned on because they violate two legal adversaries. the Golden Rule: Thou shalt not do unto others, lest... Were the script writers overly cynical about why the part­ The Starting Lineups ner called the game? Or were they not cynical enough? How The home team is the law firm of Crafty & Cagey. It many firms would stop playing the game just when their side represents an English company, Gyroslop, a manufacturer of was about to score? automatic hot porridge vending machines distributed Litigators tend to think that terms like "hard-nosed litiga­ throughout Europe. For five years, Gyroslop has tried to tor" or "tough trial lawyer" are redundant. Litigators are establish a long-term business arrangement with Georgia- supposed to be hard-nosed and tough. Litigation is supposed based Pure Foods, a manufacturer of dry cereal products to be hardball. We have all had it played against us. We have distributed by vending machine in the United States. But the relationship has recently broken down. Gyroslop wants to Messrs. Solovy and Byman are partners in the Chicago firm of termer sue Pure for a variety of perceived causes of action. Crafty & & Block. Cagey plays hardball.

Litigation Fall 1988 8 Volume 15 Number 1 Pure is represented by the old-line, gentleman and gentle- tories may be used by Pure as a form to be served back on womanly firm of Sweetness & Life. Sweetness & Life's Gyroslop. This is not a big problem, however, since even usual game is cricket, but it has occasionally, with great re­ Sweetness & Life knows how to frame discovery requests luctance, played a game or two of hardball. expansively enough to drive Xerox stock still higher. A more serious problem with such tactics may exist where the Spring Training plaintiff's case is strong and relatively simple. Where there is Although the business breakdown occurred in January, a legitimate chance of getting early injunctive relief, sum­ and although Gyroslop may want to seek injunctive relief mary judgment, or an early trial date, kicking off omnibus against Pure, Crafty & Cagey takes time to develop its case discovery can only delay the desirable. But Gyroslop need during spring training. Some lawyers might put together a not worry about this last risk. Its case is marginal, and its complaint and motion for preliminary injunction as quickly hardball tactics are designed to force a settlement or create as possible. Not the experienced hardball players at Crafty & enough red herrings to confuse a jury into a judgment. Cagey. Instead, weeks and months are spent fine-tuning the Gyroslop's first volley has Pure on the defensive. Gy­ most burdensome possible discovery requests to accompany roslop has won the first inning. the complaint. Thorough hardball players that they are, the lawyers at Emergency Depositions Crafty & Cagey also plot a home-field advantage. The action Inning 2: Gyroslop 2, Pure 0 will not be filed in Georgia, where Pure is incorporated, has Crafty & Cagey insists on going forward with depositions its principal place of business, and where all of its executives of Pure's key officers even before Sweetness & Life can are located. Rather, Gyroslop files in Illinois, where Pure has assemble documents or answer interrogatories. It claims the an independent distributor who test marketed Gyroslop's depositions are needed for the preliminary injunction hear­ machines. (This article is about hardball in discovery, and ing. Crafty & Cagey would not be so insistent, of course, if it therefore will not linger over the details of selecting the really wanted to conduct its discovery efficiently. But that is playing field. Just remember, however, that hardball can be not Crafty & Cagey's goal. It has no intention of completing played on many levels, not merely in discovery.) these "emergency" depositions; it wants a second shot at At the outset, then, Gyroslop has assembled its lineup, Pure's key witnesses after documents are ultimately pro­ gone through its spring training and preparation, selected the duced. In true hardball, money is no object. playing field, and—by way of a summons and motion for Therefore, Crafty & Cagey always leaves open the possi­ preliminary injunction returnable on a few days' notice— bility that every deposition will have to be resumed. A num­ issued an invitation to Pure for an away game. Sweetness & ber of devices are employed to this end. The most obvious is Life is playing catch-up from the start. to begin a deposition before documents relating to the depo­ The Initial Volley of Discovery nent are produced. A further session will be needed after the documents become available. Inning 1: Gyroslop 1, Pure 0 Another tactic, elegant in its simplicity, is to schedule Gyroslop gets out to an early lead by burying Pure in more depositions within a limited time than can possibly be discovery. The federal rules ordinarily bar a plaintiff from concluded. Since Crafty & Cagey must travel from its offices serving discovery requests returnable less than 45 days from in Chicago to Georgia for the depositions, it notices five filing. Gyroslop's motion for preliminary injunction, how­ ever, gives Crafty & Cagey an opening that wily veterans of the game often exploit. Gyroslop accompanies its complaint with a motion for expedited discovery. Its document requests require the production of every piece of paper generated by Pure over the past 12 years. Gyroslop's interrogatories, if answered completely, will require a platoon of lawyers to interview every living Pure executive, past and present, for days, maybe weeks. Gyroslop's emergency notices of depo­ sition will require Pure's key executives to cease all normal business activities while they prepare for and attend days of deposition inquiry. Analysis from the Broadcast Booth: Burying an opponent in early discovery is one of the most common and possibly effective kinds of hardball discovery. Such tactics are be­ coming so commonplace in commercial litigation that it may not even be appropriate to describe them as hardball. In fact, early, detailed discovery can be effective on many levels. It can uncover information actually useful in the case. It puts the defendant on the defensive and diverts resources that might have been used to prepare a defense or counteroffen- sive. And by creating immediate burdens, it can produce an early settlement. There is little risk in such early tactics. Of course, Crafty & Cagey's carefully drafted document requests and interroga­

Liligation Fall 19 Volume 15 Number 1 tained in the normal course of business. Anyway, there has always been a counter to boiler room production: Make a cursory review of the documents (to eliminate any docu­ ments thrown in for bulk alone) and request copies of every­ thing else. These can be reviewed in a more leisurely and humane way at your own offices. Document production often presents opportunities to de­ rail other discovery and slow down the litigation. Plaintiffs who want to harass defendants into settlements, and defen­ dants who want to delay judgment day as long as possible, depositions for a single week. This requires that Sweetness look for—and find—such opportunities. Potentially endless & Life and Pure prepare each of the five witnesses. When the disputes may arise over whether particular documents are depositions actually begin. Crafty & Cagey offers Pure two relevant; whether certain documents are protected by work- equally dilatory options: Either proceed with a single witness product, attorney-client, or other privileges; or whether until completed (even though that witness's deposition can documents should be produced only subject to protective never be completed because relevant documents are unavail­ orders. In fact, just negotiating the protective order itself can able), or spend one day with each of the five witnesses, take weeks. without any reasonable expectation of getting very far with In this inning, Gyroslop hopes to bury Pure under unrea­ any of them. sonably broad document requests. It purposefully includes Either way. Crafty & Cagey has maneuvered Sweetness & requests that likely invade various privileges. Under the Life into wasting preparation time with key employee wit­ guise of seeking discovery relating to a trade secret count, nesses. Gyroslop asks for communications with patent counsel. In large part. Crafty & Cagey has scored this inning be­ Under the antitrust count, Gyroslop asks for material con­ cause it has forced Sweetness & Life to play hardball in cerning a 20-year-old Justice Department consent order return. If Sweetness & Life had thought carefully, it might which expired 10 years ago. have asked the umpire—the judge—to slow down the game. But Pure has taken up Gyroslop's emotional challenge and decided to play by Gyroslop's rules. Believing it should move the case quickly to vindicate its good name and avoid having to report a spurious lawsuit in its financial statements. Pure has rejected useful stalling maneuvers. Analysis: Gyroslop has scored another run. Pure is still shut out and on the defensive. It has not even been able to take a decent swing at the ball. Worse yet, Gyroslop is able to keep pressure on Pure with far fewer resources than Pure needs to resist the pressure. Since the document requests and interrogatories are already prepared, Gyroslop merely needs It is often tempting to meet hardball with stonewall. We one or two lawyers to take depositions, while Pure needs get our machos up and meet force with force, or, as Gyroslop platoons of attorneys and paralegals to review and assemble hopes here, farce with farce. Gyroslop wants Pure to invoke documents, answer interrogatories, prepare witnesses for privileges so that the litigation can be strung out. depositions, and sit in on depositions. If hardball were a two- But Pure resists the knee-jerk reaction. Sweetness & Life inning game, this contest would be over. actually reads the requests. It determines that they probably Document Production seek privileged material but definitely are not harmful to Pure's position. Pure simply agrees to produce the docu­ Inning 3: Gyroslop 2, Pure 1 ments, asking only for a stipulation that this limited waiver The production of documents has always offered exotic of privilege is not to be construed as a general waiver. Of opportunities for playing hardball. Although the relatively course, true hardball players seldom stipulate to anything, recent amendments to Rule 26 of the Federal Rules some­ but Gyroslop has scant choice here. It can hardly refuse to what cramp the style of hardball specialists, there still are accept the production of requested documents. Pure has many ways to throw curves. taken Gyroslop's screwball and is waiting for a better pitch. A time-honored hardball strategy involves the way docu­ Pure, of course, might have taken a different course and ments are made available for inspection at a client's business played hardball itself on document production. No matter location. The room for document review is generally located how expansively drafted, document requests are always fer­ as close to the boiler as possible. It has no ventilation, little tile ground for clever, narrow interpretations to avoid pro­ light, and a lot of dirt. The room is then stocked from floor to duction of almost anything. But there are great risks in such ceiling with more documents than a boy scout troop could tactics. If the documents are later discovered, previous at­ assemble during a month-long paper drive. The heat is tempts to withhold them will underscore their significance. turned up, the air is pumped out, and opposing counsel are But, in this game, all this is moot. Pure has nothing to hide. It invited in. produces everything. The use of this tactic has been limited by amended Rule Analysis: Sweetness & Life produces documents without a 26. It now requires that documents be produced to corre­ whimper. Then it takes Crafty & Cagey's document requests spond with numbered requests or as the documents are main­ and interrogatories and rewrites them, substituting "Gy-

Liligation Fall 1988 10 Volume 15 Number 1 roslop" for "Pure" wherever appropriate. Crafty & Cagey is the trade secrets, while Crafty & Cagey got what it wanted— bitten by its own expansiveness, unable to argue credibly Sweetness & Life's goat. against the relevance of information it has itself sought. Pure Though Crafty & Cagey created a high irritation level, its finally scores on an error. tactic was not particularly effective. It still had to give the answers Pure sought. More important, it wasted valuable Interrogatories brownie points with the judge. Even though the judge de­ Inning 4: Gyroslop 2, Pure 2 clined to get into the mud with the parties on this first issue. Crafty & Cagey has used up a good measure of the court's Faced with vague allegations of misuse of trade secrets. Pure understandably needs some exposition of the trade se­ patience on a dispute it could not possibly have hoped to win. crets Gyroslop claims were divulged and misused. Pure Third-Party Depositions therefore serves an interrogatory requesting that Gyroslop "describe in detail the nature of each trade secret alleged to Inning 5: Gyroslop 3, Pure 2 have been divulged by Gyroslop to Pure ..." In almost every case, there will be witnesses not directly Gyroslop responds to the interrogatory: affiliated with either party who nevertheless share an interest The trade secrets divulged consist of all aspects of the Gyroslop porridge vending machine, all aspects relat­ ing to the workings of such machine, all aspects relat­ Judges enjoy mediating ing to the ingredients of the porridge, and all aspects relating to the placement and operation of such ma­ discovery spats as mueh as chines. Crafty & Cagey's attorneys are masters of an advanced kindergarten teachers do hardball technique: Answering an interrogatory at length without conveying a single atom of information. Pure knows deciding whose crayon is whose. no more after this answer than it did before propounding the question. with one of them. Pure's independent distributors are an Pure seeks more detail from Gyroslop. Crafty & Cagey example. They are indeed independent, but still want to says it has answered as best it can. Sweetness & Life brings a cooperate with Pure. When Gyroslop serves notices of depo­ motion for further answers to the interrogatories and for sitions and subpoenas on these independent distributors, they sanctions. Crafty & Cagey responds with its own motion for rush to Pure and its counsel for guidance. sanctions; it argues that Sweetness & Life's motion was No lawyer worth his diploma would turn down a chance to abusive because Gyroslop had fully responded to the inter­ talk with a witness before he gives sworn testimony. Sweet­ rogatory. Gyroslop contends that it did describe in detail "the ness & Life is no exception. Sweetness & Life therefore nature of the trade secrets. It would have provided more contacts the distributors who have been subpoenaed and asks detail, it says, if the interrogatory had been worded "describe to meet them before the depositions. in detail each trade secret." When most business people are served with a subpoena, There must be judges somewhere so offended by this type their reactions range from discomfort to catatonia. If they of tactic that they do something about it. Litigators must bear testify, they will be more comfortable represented by coun­ in mind, however, that no matter how important their own sel, especially if they can figure out how to get the lawyer for discovery disputes may seem, judges and magistrates have free. One of Pure's main distributors, Dirk Puritan of Puritan the same enthusiasm for mediating discovery spats that kin­ Distributing in Texas, asks Sweetness & Life if it can repre­ dergarten teachers have for deciding whose crayon is whose. sent him at his deposition. Sweetness & Life sees no conflict The judge simply does what any good kindergarten teacher between the position of Pure and the matters likely to be would do if presented with such a quarrel: He wearily in­ discussed in the deposition. Both Pure and Puritan agree to structs Crafty & Cagey to file supplemental answers within waive any conflict that might exist. Puritan signs an agree­ 30 days, sending both parties back to their respective offices ment not to oppose Sweetness & Life's continued represen­ to ponder further mayhem against one another. tation of its original client. Pure, in the unlikely event that an Analysis: Pure scored a run this inning, but it was not the adverse relationship develops. big inning Pure had hoped for. Pure wanted to turn Crafty & All this seems convenient and helpful. Pure would be Cagey's hardball tactics against it by having the judge im­ paying for Sweetness & Life's services in preparation and pose sanctions. The judge did not. Sweetness & Life eventu­ attendance anyway, so there is no need to charge Puritan for ally got what it had originally wanted, a fuller exposition of Sweetness & Life's time. Better yet, having an attorney- client relationship offers the great advantage of shielding matters discussed during the preparation session from dis­ covery. The problem is that Crafty & Cagey decides to play hard­ ball. Crafty & Cagey charges that there is a conflict between Pure and Puritan and asserts that it has standing to raise the conflict. Crafty & Cagey has alleged that Pure exerts monop­ oly power over its distributors through threats and economic coercion, and intends to examine Puritan about such threats. Crafty & Cagey argues that Sweetness & Life's dual repre-

Litigation Fall 1988 11 Volume 15 Number sentation will frustrate its efforts to get truthful, complete from this country and may not understand your termi­ answers from Puritan. nology. When you say 'state' the witness may not un­ Sweetness & Life is dumbfounded by Crafty & Cagey's derstand what you mean, and therefore your question position. Crafty & Cagey does not care. The first two hours is indefinite, imprecise, and incapable of an answer. of Puritan's deposition are spent solely on how the represen­ SWEETNESS & LIFE: What? tation of Puritan by Sweetness & Life arose. As soon as the CRAFTY & CAGEY: Same objection. subject is exhausted (actually, about an hour after it is ex­ The objections escalate when matters of substance become hausted and repetitive questions are asked). Crafty & Cagey involved: adjourns the deposition and brings an emergency motion in the local Texas district court to have Sweetness & Life SWEETNESS & LIFE: By whom are you employed? disqualified from representing Puritan. At 4:00 that after­ CRAFTY & CAGEY: Objection. That question calls for noon, the emergency motion judge finally hears the matter. a legal conclusion as to the nature of the entity which He expresses some bemusement at the issue, and denies the employs the witness and as to what constitutes an motion. employment relationship. This witness is not a lawyer Analysis: Even though Crafty & Cagey's motion was de­ and is not competent to answer such questions. nied, Gyroslop nevertheless scores in this inning. Since the SWEETNESS & LIFE: Say what? deposition was taken hundreds of miles away from the court CRAFTY & CAGEY: Same objection. where the case will be tried. Crafty & Cagey lost no brownie After half an hour of this sort of thing, the temptation is points with the eventual trial judge, no matter how thin its strong: (1) to adjourn the deposition to seek some help from motion may have been. And while Gyroslop was losing its the court; (2) to offer Crafty & Cagey a continuing objection motion, Puritan and Sweetness & Life lost a day of their lives in order to stop the infuriating intrusions; or (3) to challenge warming up in the bull pen. Puritan is exhausted and is Crafty & Cagey to a duel in the nearest cow pasture. All three rethinking how much it wants to cooperate with Pure. The temptations should be resisted. deposition will have to be rescheduled for another day, Since dueling is illegal in both Georgia and Illinois, and in weeks in the future, and Sweetness & Life will have to go most other states where these events are likely to occur, a over the same ground already trod to reprepare Puritan. challenge of battle to the death only feels good at the time of the offer. It also feels good to attack counsel on the record, Party Depositions making snide, witty comments about Crafty & Cagey's obvi­ Inning 6: Gyroslop 3, Pure 3 ous failings of legal ability and personal appearance. But no Playing hardball at depositions is a matter of style. There matter how good it feels, it does not do any good. You may feel better. Your client may feel better. But your case will not are infinite variations on the theme. Again, Crafty & C 0ey is a master of the game. be a bit better. We do not mean to suggest that lawyers Even though Sweetness & Life made Pure's officers avail­ should not occasionally build client morale by taking on able from 9 A.M. until 7 P.M. (with just a half-hour break for opposing counsel, but they should not delude themselves into thinking they have accomplished anything lasting. If possible, dueling—even verbal dueling—should be avoided. Turning to the court for help may or may not result in It may feel good actual relief. It is certain to delay the deposition and frustrate your attempts at getting discovery. Unless you have previ­ to attack opposing counsel ously raised the consciousness and irritability of the court to the point where the judge will look at each and every ques­ on the record, hut tion and objection in a deposition, you will not get much. Orders barring further objections to future, unasked ques­ it will have few benefits. tions are very rare. The offer of a continuing objection is probably the worst thing you can do. It will not stop Crafty & Cagey from lunch) in order to get discovery completed as quickly as continuing to interrupt and frustrate the deposition. But it possible. Crafty & Cagey would never think of returning the may give them a lever, should you ever try to use the deposi­ favor when its own client is deposed. Crafty & Cagey insists tion at trial, to suggest that objections they forgot to make at that depositions not start before 10 A.M. nor go beyond 5 P.M., the time, and therefore might have waived, were covered by with an hour and a half for lunch. Its lawyers then arrive at the stipulation of a continuing objection. least 15 minutes late for each session. Frequent breaks are The use of objections to coach a witness is another subject taken whenever a witness seems to have any difficulty an­ so commonplace that it may not seem right to call it hardball. swering a question. B ut that is what it is. If a question has already been asked and Part of playing hardball is knowing how to foul off good answered, the technically proper objection is: "Objection. pitches to wear the pitcher down until he throws a fat one Asked and answered." Period. The witness then is supposed down the middle. Because Gyroslop's witnesses are from the to answer again anyway. He will probably give a slightly dif­ United Kingdom, they have an opportunity not ordinarily ferent answer. present in domestic litigation, but the principle remains the Of course, no hardball litigator would think of stopping same: with the technically correct objection; instead, he would say: SWEETNESS & LIFE: Would you please state your "Objection. Asked and answered. He told you this morning name? that the meeting occurred in December 1986." Thus CRAFTY & CAGEY: Objection. This witness is not (please turn to page 60)

Litigation Fall 1988 12 Volume [5 Number I the record. Let's go off the rec­ though hit over the head with a mallet: trial preparation and strategy; (2) to ord. "Yes, I'm confused. What do you mean delay the eventual trial, putting off Despite such curiosities, we must not by 'agree'?" an inevitable adverse result; or (3) to forget that deposition practice gives Analysis: Frequent, infuriating, and soften up one or both sides for possi­ reasonably respectable work to the liti­ coaching objections are like brush back ble settlement. The conscious use of gation camp followers: the court re­ pitches. Because they are judgment discovery for the latter two ends is be­ porters; the litigation support systems; calls, the umpire is not likely to throw yond the bounds of ethics, but to think the software support systems; the ac- the pitcher out of the game for a few of that litigators do not use discovery for cidentologists; the color-coded exhibit them. But charging the mound will get such hardball purposes is to blink real­ label manufacturers. And let us not for­ the batter thrown out. The only thing ity. get the tab makers. What would we be the batter can do is stand his ground Hardball tactics, carried to an ex­ without tabs? A Chicago law firm has and wait for his pitch. This Sweetness treme, can delay the course of litiga­ three full-time tabbers. In one case I & Life does. Crafty & Cagey gains no tion. But because they are, by their very know of, the certificate of service con­ advantage by its hardball tactics, and nature, infuriating and frustrating, such tained four tabbed exhibits. Sweetness & Life scores through pa­ tactics can actually make settlement tience and perseverance. No one should let these details ob­ less likely. A litigant's frustration and pain may tilt him toward settlement scure the significance of what is hap­ Relationship Between Counsel pening. We are all participating in the until they reach a point where the party second golden age of discovery. The Inning 7: Gyroslop 3, Pure 3 decides to fight back in kind, and be­ memorable discoverers of the first were There will be many instances during comes intractable. Columbus and Balboa. The memorable discovery in a major case when the par­ Even if we put to one side ethically heroes of the second are not lonely fig­ ties need to cooperate. One may want questionable conduct, it is still doubtful ures on the oceans, but anonymous liti­ to depose former employees of corpo­ that the use of hardball tactics is genu­ gators sitting in conference rooms all rate parties; these witnesses are not inely effective in the legitimate devel­ across America. They press on, doing technically subject to notice, even opment of a case for trial. Hardball tac­ their best to resist eating too much of though they will probably be repre­ tics should not be confused with thor­ the host law firm's Danish pastry and sented by the party's counsel. The pro­ oughness. It is possible—and often eas­ striving earnestly to complete discov­ duction and scheduling of such wit­ ier—to obtain full discovery (or to re­ ery—at least the first wave—before the nesses by voluntary cooperation—as spond fully without giving away more cutoff date. 10 opposed to subpoena—is usually in than is legitimately required) without both sides' best interests. Similarly, ever throwing a fastball. documents may be disclosed during In the end, Gyroslop's tactics have depositions that were not specifically not allowed it to outscore Pure; the par­ requested; it may be in the mutual inter­ ties go into the final innings tied. It is a Hardball est of the parties to produce such docu­ brand new ball game. The facts and the ments voluntarily so that depositions law will determine the outcome of the continue. Likewise, scheduling, to ac­ case. All Gyroslop has accomplished is Discovery commodate both witnesses and law­ to spend too much money, create too yers, is always easier by discussion much rancor, and, possibly, lose too than by formal procedure. (continued from page 12) much judicial goodwill. coached, the witness is less likely to As obvious as the mutual benefits of The Final Score blurt out a wrong or differing answer. cooperation may be, the use of hardball Real hardball occurs when the law­ tactics may make it impossible for the Gyroslop has had its innings, but so yer uses such objections to coach wit­ parties to agree on anything. Despite has Sweetness & Life. nesses with no good faith basis. The the best intentions of Sweetness & Life All good litigators must know how to lawyer may make his asked and an­ and Pure at the beginning of the litiga­ play hardball in discovery. Knowing swered speech even though the subject tion, months of hardball tactics by how does not, however, mean always was not discussed earlier. Or he may Crafty & Cagey and Gyroslop make it doing it. There will be times when advise the deponent how to answer by impossible for the parties to cooperate hardball will be the only effective on anything other than continued esca­ this kind of artifice: means to counter an adversary who in­ lation of hostilities. sists upon such conduct. There will be Objection. What do you mean by the times when you must recognize hard­ phrase 'did you agree to keep the The Seventh Inning Stretch ball, in order to advise a client how to widget confidential'? Are you refer­ During the seventh inning stretch, respond without getting stuck in the ring to the written agreement be­ with the score tied, we can review hard­ same mud. But it is not necessary to tween Pure and Gyroslop, or to ball tactics thus far. Have they ad­ start a hardball game yourself. Of some other agreement, or do you vanced the parties' goals? course it matters whether you win or mean 'agreement' in some collo­ There really are only three reasons lose. But it also matters how you play quial sense? I mean, I don't under­ litigants engage in discovery: (1) to the game. A client is entitled to his stand your question. But if the wit­ discover facts, preserve testimony, or attorney's zealous representation, but ness understands, he may answer. establish grounds for possible im­ zeal for its own sake has no purpose The witness, of course, responds as peachment—all of this facilitates and no place. 10

Litigation Fall 1988 60 Volume 15 Number I